
Class JUCL2A- 



Copyrtehi X" 



COPYRIGHT DEPOSIT. 



CIVIL GOVERNMENT 

IN THE 

UNITED STATES 



By 
CHARLES H. McCARTHY, Ph. D. (Pa.) 

Professor of American History in The Catholic University 

of America. Author of Lincoln's Plan of 

Reconstruction; Columbus and 

His Predecessors, Etc. 



WASHINGTON, D. C. 

CATHOLIC EDUCATION PRESS 

1914 



<\* 



*4? 



^ 



Copyright 1914 

by the 

CATHOLIC EDUCATION PRESS 



©CI.A376342 



USEFUL BOOKS FOR TEACHERS OF CIVIL GOVERN- 
MENT 

Actual Government in the United States, by A. B. Hart. 

The American Commonwealth, l' Vols., by -James Bryce. 

The Federalist, edited by Henry Cabot Lodge. 

A Constitutional History of the United States, 3 Vols., by 
Francis Newton Thorpe. 

Journal of the Constitutional Convention, by James 
Madison. 

Political Science and Constitutional Law, 2 Vols., by 
J. W. Burgess. 

Introduction to Political Science, by J. Wilford Garner. 



iii 



PREFACE FOR TEACHERS 

Perhaps the first point to be noticed by a teacher examin- 
ing this book will be the number of paragraphs in small 
print. Though these illustrate the topics concisely treated in 
larger print, most of them are not intended for the use of the 
student, but have been retained, from an earlier type-written 
form, for the convenience of the teacher, who may not al- 
ways have at hand a good collection in American history. 

Another peculiarity of this volume is the treatment of the 
Federal Constitution before the Stale constitutions. The 
author is familiar with the logical system of instruction 
which introduces boys and girls to their back yards before 
they explore their lawns and descry Hie far-off sidewalks, 
which gives them a peep at adjacent gardens and then makes 
them acquainted with the wonders of the nearest town. 
Afterward visits to the county seat, to the State capital, 
and to the National capital fill out what seems, as well in 
geography as in civil government, the very scheme of nature 
itself. This book could have introduced the pupil to the 
road district, the school district, the township, and so on in 
the time-honored fashion. The objection to this pseudo- 
scientific system is that from the point of view of the student 
it conducts him over a tract that is sterility itself. 

Of the merits of the method adopted in this book there 
is no room for doubt. The experiment, if one chooses so to 
call it, is, in the knowledge of the author, many years old 
and in a variety of tests has been singularly successful. It 
has been tried in high schools, in colleges, and in university 
work with teachers. Those who have never had a grasp of 
this science have found it a pleasure, after reading these 
chapters, to take up more advanced studies. 

A simpler style of presentation and an omission of such 



VI PREFACE 

topics as require maturity of years should adapt this system 
to the needs of the grammar school. But no text book on 
Civil Government can absolve the teacher who uses it from 
special training in the Constitutional History of the United 
States. On the part of the pupil as much effort will be re- 
quired to master the contents of this book as is usually 
bestowed upon higher arithmetic. 

It need hardly be remarked that in a branch of knowledge 
admittedly so dry as Civil Government it is only the wide 
reader who can make it interesting and profitable. In this 
field natural ability is not all in all; perhaps industry is 
the most desirable gift. These considerations have sug- 
gested the preparation, not of a complete bibliography, which 
few teachers have time to master, but a brief list of useful 
books on this and on cognate subjects. The proof sheets of 
the entire volume have had the benefits of a careful reading 
by Mr. Chas. C. Tansill, A. M. 

Charles H. McCarthy. 

Washington, D. C, 
January 20, 1914. 



HINTS TO STUDENTS 

To get the best results from the use of this book the pupil 
should, wherever it is practicable to do so, adopt the follow- 
ing plan of study. Bead carefully the first five pages and 
note that each has one or more indented margins with a hint 
in italics on the subject of each paragraph. For example, 
when the pupil has read the first page, he is plainly told that 
he should know his United States History, and that he will 
not and can not understand this subject unless he learn the 
meaning of certain important terms that are to be con- 
stantly used. These words will be fully explained once, but 
they will not be taken up a second time. The second page 
tells something about the branch to be studied. By turning 
to page 199 and the pages following the student will find 
"Review Questions'' on every chapter in the book. There are 
two questions asked concerning the matter in the firs! para- 
graph of page 2. The second paragraph of page 2 is com- 
pleted on page 3, where the pupil will find an explanation of 
the reveiw question, "What is the fundamental idea in the 
word constitution /" Pages two and three will give the 
answer. Number 4, of the review questions, is answered on 
page 3. The remaining pages of chapter I are to be worked 
out in the same way. Chapter II is to be learned just as 
United States History lessons have been, for that is pre- 
cisely what it is, a review of certain topics in American 
Political History. Our subject proper is American Consti- 
tutional History, or Civil Government in the United States. 
The same remark will do for chapter III. On this matter 
The student must be reminded that the list of questions on 
pages 199-205 is by no means complete. His teacher will 
make up many more. Those in the book are specimen ques- 
tions. 

vii 



Viii HINTS TO STUDENTS 

When the student takes up chapter V, he should turn to 
Appendix B, page 214, which is a copy of the Constitution 
of the United States, and get very familiar with the Pre- 
amble, in fact, it is worth memorizing. At this time he 
should read no farther than the Preamble. After doing so, 
he should see what is said in the text, pages 39-42, on the 
subject of preambles. Then he should turn to page 200, re- 
view questions, and find out whether there are any questions 
on the subject of preambles. Finally, he should look into a 
dictionary and learn the derivation of the word preamble. 
He will then know something about the first part of the Con- 
stitution of the United States, that is, about the preamble. 
Every part of the Constitution should be worked out with 
equal care and should be so often reviewed that it becomes 
a part of the pupil. Besides it will help him to look up 
things for himself, and it is from the constant effort to find 
out facts for himself that the student will acquire an educa- 
tion. 

The next division of the Constitution, namely, the Frame 
of Government, is of the greatest importance and should be 
taken up in the same manner as the beginning of chapter V. 
Let the student turn to Article I and read section 1; then 
read pages 43-44, note what is said there, and see whether 
there are any review questions on the pages thus read. In 
section 1 some things are said and some things are implied. 
It is said that "all legislative powers herein granted shall 
be vested in a Congress of the United States, which shall con- 
sist of a Senate and House of Kepresentatives." The fact 
implied is that neither the President nor the United States 
Courts can pass laws, for the power to do so is vested in 
Congress. 

When all the Constitution has become familiar, the Arti- 
cles of Confederation, Appendix A, page 206, can be read 
over, and those parts pointed out that have found a place in 



HINTS TO STUDENTS IX 

the Constitution. The Articles can be contrasted with the 

Constitution as to Hie organization of the Congress in each 
system; also the organization of the Executive and the Judi- 
cial Departments. The student should learn how the General 
Government obtained its revenue under the old and how it 
obtains it under the new constitution. It is desirable to be- 
come familiar will) the language of the Constitution, but it is 
much more desirable to understand it. 

The Author. 



CONTENTS 

PAGE 

Useful Books for Teachers of Civil Government . . iii 

Preface for Teachers v 

Hints to Students vii 

Introduction 1 

Plans for Colonial Union 13 

The Constitutional Convention I'M 

The Preamble 39 

The Frame of Government 44 

Power of Amendment 136 

The Schedule 138 

The Bill of Rights 14(1 

Civil War Amendments 145 

New Amendments 152 

State Government 153 

Rights and Duties of American Citizens 18G 

Specimen Review Questions 199 

Articles of Confederation 20G 

The Constitution of the United States 214 

Index 234 



xi 



CHAPTER I 

INTRODUCTION 

For including in any serious programme of study an expo- 
sition of our Federal Constitution no apology appears to be 
required. Unless, however, this exposition can suggest how 
the more intricate parts may be simplified and the less 
attractive made interesting, it is not easy to perceive any 
sufficient reason for adding to the body of literature on any 
portion of the civil government of the United States. That 
both objects can be accomplished, at least in part, is the 
opinion of the writer. Nevertheless, iliis is nol the only 
reason for preparing the following chapters on the Civil 
Government of the United States. A careful observance 
of methods which are in accordance with fundamental prin- 
ciples and which have long been tested in the class room, 
will, it is believed, prove of value to both teachers and pupils. 
The succeeding pages, therefore, will, as far as practicable, 
illustrate methods of instruction which in the author's 
experience as a teacher have been found satisfactory. 

Clearly to understand this proposed method, however, the 
pupil must have well in mind a few fundamental ideas con- 
cerning the meaning of certain political 
Political Terms terms; also an accurate acquaintance with 
Must be the main outlines of American political 

Understood. history. This information may be obtained 

from almost any of the popular grammar 
school histories of the United States. This introduction', 
therefore, will be chiefly concerned with an attempt to 
define certain terms which we shall have occasion con- 
stantly to use. After explaining a feAV of these political 



I INTRODUCTION 

terms there will be given a concise account of the Conven- 
tion that framed the Constitution of the United States. 

Before discussing fundamental ideas in government it may 
be of some assistance to the student particularly to direct 
his attention to the popular name of our subject, 
Nome of viz., Civil Government in the United States. In 
Subject. this title he will at once perceive the implication 
that there could be a science of civil government 
in Great Britain, civil government in France, civil govern- 
ment in Germany, etc. It will be no less obvious that there 
can be a species of government which, unlike civil govern- 
ment, does not derive its authority from the citizen, but 
which may be imposed on him by some outside power. Such, 
for instance, is military government. This species has pre- 
vailed temporarily in many parts of the United States. His 
historical information may tell the student that there can be 
government which is neither civil nor military. 

Probably there are few pupils who do not know that 
in their own village, town or city certain sets of men admin- 
ister government. Now these men cannot 
Power of do everything that they may desire to do. 

Local Officials They cannot, for instance, take property 
Limited. which belongs to Mr. Brown and give it to 

Mr. White. They cannot carry off to the 
jail or to the station-house and keep there as long as they 
please a law-abiding member of the community. To take 
the property of one man and give it to another would be 
not an act of government, but an act of oppression. To 
confine in jail a person who has committed no crime would 
likewise be an act of oppression and, if frequently repeated, 
would lead to great disorder in the community. To prevent 
this disorder and oppression the powers of the governing 
officials are carefully limited. It may be by a custom which 
has long been observed in the community. With us, however, 



A CONSTITUTION 3 

these limitations are set down in written documents. The 
fundamental notion of a constitution, then, 
A Constitution is that it is a restraint on those who exer- 
Defined. cise the powers of government. Our Fed- 

eral Constitution not only restrains our 
rulers, but it also makes up or constitutes the government 
in a particular form; it distributes powers among certain 
departments; it provides a method for its own amendment, 
and guarantees certain rights to individuals. On a later 
occasion these ideas will be more fully discussed. 

The words nation, state, and government also require some 
explanation. These terms can be illustrated by the history 
of the Jewish people. From the familiar account in the 
Bible it will be remembered that because of famine, which 
prevailed in their own country, the descendants of Abraham 
became acquainted with the wealth and other advantages 
of Egypt. Joseph, who had long before been sold into 
slavery, had risen high in the councils of that nation and 
had won the confidence of its ruler. This circumstance per- 
suaded the members of his family to join him there and gain 
some of its advantages. At first they were encouraged by 
the Egyptian authorities, and in the course of time became 
exceedingly numerous. Later they suffered great hardships, 
and to escape from their oppressors returned, by way of the 
Red Sea, to Asia. After a long sojourn in the wilderness 
they were permitted to occupy the Promised Land. The 
history of this people will explain what scientific writers 

mean by saying that the word nation is "family 
Nation writ large." The term nation, from nascor, has 
Defined, reference to birth or kinship, that is, descent from 

a common ancestor. It follows naturally that 
the people of such a nation speak a common language and 
have similar institutions. In a word, this people first 
appears as a family ; when they become sufficiently numerous 



4 INTRODUCTION 

they are spoken of as a nation. Later when they established 

themselves in the country along the Jordan, and 

State, organized themselves politically, they became a state. 

Their judges at first and afterward their kings, who 

ruled them and represented them in their intercourse 

with the neighboring powers, were the heads 

Government, of their government. 

If it is preferred, contemporary illustra- 
tions can be given. As being more familiar Great Britain 
is, perhaps, a better illustration. That island is the home 
of three nations, viz., the English, the Welsh, and the Scots. 
Together they form one state and have but one government. 
Austria-Hungary, too, is one state; for imperial purposes it 
has only one government, but under the authority of that 
government are found many nations. That country is in 
fact a veritable Tower of Babel. Many of the nations in 
Austria-Hungary have languages and even literatures of 
their own. The most important of these ethnical elements 
are the Hungarians, the Germans, the Slavs and the Italians. 
In this view Ireland is a nation ; it is also politically organ- 
ized, but it is as government not as state that it is so organ- 
ized. The next paragraph will, perhaps, serve to make 
this distinction still clearer. 

It is not now intended to explain the various forms of 

tlie government and of the state. With respect to their 

objects states could be classified differently. 

Classification The aim of the state might be military in 

of States. character; it could apply its resources and 

energies in an endeavor to extend its 

dominion. Its object could be the promotion of art, of 

religion, of education. It is not, however, in respect to their 

objects but because of their forms that states are commonly 

classified. I 

On this subject the great classic authority is Aristotle, but 



KINDS OF GOVERNMENT 5 

in the Hellenic world of his day the state was merely a 
walled city. At that time, too, states and governments were 
often confounded. Therefore we do not certainly know 
whether the great philosopher was thinking 
Aristotle's of the state or of the government when he 
Definitions. denned monarchy as the rule of one, aris- 
tocracy as the rule of the minority and 
democracy as the rule of the masses. The body of literature 
on this topic is very great but the subject has by no means 
been made perfectly clear. From the point of 
State view of the political scientist the state may be 
Defined, described as the highest human power operating 
on a given population. This is simply another 
way of saying that it is sovereign, and in public law sov- 
ereignty is considered indivisible. 

Professor Burgess, the clearest writer on this subject, says that 
there is no such thing as a federal state; that what is really meant 
by the phrase is "a dual system of government under a common 
sovereignty."* Nevertheless, writers of undoubted reputation 
employ the expression. Its further discussion would be somewhat 
out of place in a brief introduction to a series of rather elementary 
lessons. 

Other words that require discussion are inhabitant (or 
resident), citizen, and voter. As a term of literature the 
first seems to require no special emphasis. Any human being 
making his home or dwelling permanently in a given district 
is an inhabitant of that territory, and is to be distinguished 
from a visitor. According to the Thirteenth Census, that of 
1910, the number of inhabitants in the United States is 
91,972,266. 

The term citizen is more difficult to explain. In the Four- 
teenth Amendment of the Constitution, it is true, we are 
told that "all persons born or naturalized in the United 
States, and subject to the jurisdiction thereof, are citizens of 



Political Science and Constitutional Law, Vol. I, p. 78. 



INTRODUCTION 

the United States and of the state wherein they reside." By 
attempting at the outset to make no distinction between 

state citizenship and United States citizen- 
Difflculties in ship a part of the difficulty inherent in this 
Defining term can be avoided, or, at any rate, it can 

Citizenship. with advantage be adjourned to a later 

stage. There remain, however, other diffi- 
culties embedded in this legal language. What is naturaliza- 
tion? What classes of persons born in the United States 
are not subject to their jurisdiction? By indicating some of 
the privileges of United States citizenship even young pupils, 
it is believed, can learn to distinguish an American citizen 
from a mere visitor or even a domiciliated stranger. 

The law books say that a citizen of the United States, as 
such, has the right, (a) to engage in either interstate or 
foreign commerce; (b) to enjoy the benefit 
Rights and of the postal laws; (c) in. common with 

Privileges of a others to make use of the navigable waters 
Citizen. of the United States; (d) to pass from 

state to state; (e) to travel into foreign 
countries.* If otherwise qualified, he has also a right to 
hold public office; to serve on juries, to bring suit in the 
United States Courts, and when travelling on the high seas 
or in the territory of a foreign power to receive the protec- 
tion of the United States Government. 

Formerly it was said, and it was then essentially true, that the 
principal differences in privilege between an alien and a citizen 
consist in these: an alien residing in the United States is here 
merely by sufferance; he cannot own real estate nor can be exercise 
political rights here. But these differences do not always exist; 
the states of the Union recognize fully the right of aliens to reside 
within their limits, and in many states they are permitted freely 
to hold and to transmit to their descendants real estate. Many 
states permit aliens, after a short residence therein, and after 



Cooley, Principles of Constitutional Law, 1880, p. 245. 



IMMUNITIES AND PRIVILEGES 7 

declaring their intention to become citizens, to exercise the elective 
franchise. When an alien is thus given the privilege permanently 
to reside within a state, and to hold property of all kinds therein, and 
to exercise the privilege of suffrage, the distinction in right and 
privilege and immunity between him and a citizen is not very plain.* 

As no state can naturalize an alien, so no state can confer 
upon him "all privileges and immunities of* citizens in the 
several states." Precisely whal is comprehended in this 
guaranty is not entirely clear, though political and judicial 
interpretations, to be noticed below, assist us somewhat in 
understanding them. In her first constitution Missouri 
inserted a provision for excluding from her territory all free 
persons of color, hut in Massachusetts such persons were full 
citizens, and, therefore, it was held that the proposed dis- 
crimination against free negroes was in violation of the 
provision quoted. This phase of that famous controversy 
was settled by the solemn assurance of llie Missouri legisla- 
ture that the obnoxious provision would never he enforced. 
Prom this it may fairly he inferred that the 
Immunities right of ingress into and egress from a state 

and Privileges is one of the privileges and immunities 
of Citizens. guaranteed by the Federal Constitution; 

also the right to sojourn there and to 
engage in any lawful pursuit. 

Concerning naturalization it is necessary here only to 
observe that it is the legal process by which an alien or 
foreigner is made a citizen. It cannot too 
Naturalisation often be repeated that the states cannot 
Defined. naturalize, though they may confer upon 

aliens the right to vote. From this it 
follows that in some states there are persons who are allowed 
to vote, and to vote for even representatives in Congress, 
before they have been naturalized. This practice is of doubt- 



* Cf., Cooley, Op. Cit., 77-78. 

t Constitution of the United States, Art. IV, Sec. 2, cl. 1. 



8 INTRODUCTION 

ful constitutionality, and is probably a result of interstate 
competition for immigrants. 

Sojourners or travellers who are subjects of foreign states 
may have children born in the United States, but as such 
strangers are not subject to the jurisdiction of this country 
their children, though born here, would not be entitled to the 
"privileges and immunities" mentioned above. On the other 
hand, American citizens travelling or dwelling temporarily 
abroad may have children born during such sojourn or 
travel ; as, however, the parents are not subject to the juris- 
diction of the country in which they happen to be, and have 
not acquired a domicile there, the children of such parents 
are American citizens, and, therefore, need not be nat- 
uralized. Vattel says that a man's domicile is that place 
from which if he go, he is said to be on a journey and to 
which if he return, he is said to come home. 

From the first section of the Fourteenth Amendment, 
quoted above, it is clear that, except aliens, both women and 
children are citizens. The precise number 
AY omen and of citizens in the United States is, for reasons 
Children are which will appear, not easy to ascertain. 
Citizens. Turning to the census of 1910, we find that 

the number of inhabitants is 91,972,266, but 
of these 13,343,583 are of foreign birth. This reduces the 
number of natural born citizens to 78,628,683. To this 
number must be added 3,034,117 persons who were nat- 
uralized. These, of course, are mostly males, but there are 
also many females who have been naturalized; we must add 
further a part of the 572,421 who have filed their first nat- 
uralization papers; also a considerable number of women 
whose husbands have been naturalized or who have married 
natural born citizens. Still other corrections are to be 
made. The number of citizens may be conjectured as 
exceeding 83,000,000. 



NUMBER OF VOTERS 9 

In 1910 the number of potential voters was 26,999,151. 
That is, there were in the States and Territories that number 
of males who had attained to their twenty-first year. This, 
however, far exceeds the actual voting strength of the United 
Slates. From this number we must first subtract 226,837 
such males who were residing in Alaska, Hawaii, the Indian 
Territory and certain reservations throughout the Union. 
We must also strike off 1,070,126 males (twenty-one years of 
age and over) who have not been naturalized and who have 
not even declared their intention to become American citi- 
zens. There are also 797,093 adult males whose precise 
status in respect to citizenship is unknown. Then, too, 
there were more than 91,000 persons in the military and 
naval service of the United States (including civilian 
employees) stationed abroad and not credited in the census 
to any state. Still other classes of males who have attained 
to their twenty-first year must be deducted from the 21,- 
329,819 mentioned above. At the present time many women 
are voters. 

Though the classes of persons excluded from the suffrage 
are not everywhere the same, there is among the several 
states considerable uniformity. In different commonwealths 
the following classes are denied the elective franchise ; those 
convicted of treason, embezzlers of public moneys, duelists, 
those guilty of bribery, of larceny, of crimes against the 
elective franchise; also idiots, lunatics, paupers, bigamists, 
polygamists, Chinese, Indians not taxed, Indians lacking the 
customs of civilization, persons unable to read the Federal 
Constitution in the English language, poll-tax delinquents, 
United States soldiers or mariners. In most states of the 
Union women also are classed among the disfranchised. 

In the Presidential election of 1912 there actually partici- 
pated 15,036,542 voters. In a word, the number of inhabi- 
tants is over 91,000,000, the number of citizens something 



10 INTRODUCTION 

over 83,000,000, and the number of electors or voters about 
15,000,000. This arithmetical exercise is introduced for the 
purpose of distinguishing the terms inhabitant, citizen, and 
voter. As suggested above, absolute accuracy, owing to 
insufficient statistics, is not claimed for all the foregoing 
estimates. 

Jt cannot too often be insisted that in the United States 
all political power resides in the people. A portion of this 
power they have delegated to the Federal 
People the Government, another, and by no means 

Source of unimportant, part they have conferred 

Political Power, upon the various state governments; still 
other powers they have retained. Among 
these reserved powers is the right to amend from time to 
time either the state constitutions or the Federal Constitu- 
tion, and not only to amend but completely to change them. 
For the present it is enough that the student remember that 
the American theory concerning the source of political power 
is not held in most European countries. 

No method of examining the Federal Constitution which 
overlooks the existence of the state constitutions can be 
regarded as scientific. The pupil should 
State and City be impressed with the fact that besides 
Government the national there are forty -eight other 

Very Important, constitutions; that each of these is of 
very great importance not only to the 
people of the commonwealth in which it operates but to 
multitudes beyond its borders. From this he will rightly 
conclude that his welfare is not completely bound up with 
the Federal Government, but that in his own state capital 
and in his own city or county there are governing bodies 
of very great importance. 

Fully to recognize and appreciate the sources of the Fed- 
eral Constitution, the pupil must reflect that before 1787, 



THE OLD AND THE NEW CONSTITUTION 11 

when our fundamental law was framed, eleven members of 
the Union had adopted const i hit ions of government. In 
oilier words, the American people had just completed a 
valuable apprenticeship in constitution making.* If the 
instruments of government then made, are analyzed with 
respect to their principal provisions, one cannot fail to be 
struck with their general resemblance to the Federal 
Constitution. 

In discussing the Constitution occasions will frequently 
arise when we can examine the more important provisions of 
tin; Articles of Confederation ami Per- 
Articles of petual Union. Thai instrument, there- 

Confederation and fore, need not now be considered. It is 
Constitution indispensable, however, to indicate even 

Contrasted. in the beginning the fundamental differ- 

ence between the two frames of govern 
ment. To say nothing of the different form in which gov- 
ernment was constituted by each it is very important to 
remember the tact that under the Articles all measures of 
government were directed to stales and operated on them as 
corporations. As seemed best for the interests of the moment 
a state could either respond or entirely disregard the recom- 
mendation of the Continental Congress. In the old system 
there was, of course, no provision for coercing a state; such 
an attempt might lead to civil war: under the Constitution 
there was no necessity for so doing, because measures of 
government were never directed to states as corporations. 
The regulations of the Federal Government operated on indi- 
viduals. If these refused to yield obedience, they could 
easily and without danger to the state be coerced. In a 
word, the government under the Articles addressed its 



* To illustrate the activity of this era it will be sufficient to observe that as 
early as 1784 New Hampshire alone had made three constitutions. Notwith- 
standing the recommendation of the Continental Congress, Connecticut and Rhode 
Island continued to live on under their colonial charters, the former till 1818, the 
latter till 1842. 



12 INTRODUCTION 

measures to commonwealths, under the Constitution to indi- 
viduals. This was the fundamental difference between the 
two systems. 

In addition to the terms which have been tentatively denned, 
many of scarcely less importance have been omitted. Opportuni- 
ties will occur, however, when these can be noticed. A topic of 
considerable interest and importance, and one which often finds a 
place in essays on American constitutional history, is that concern- 
ing the various plans of union among the British colonists in North 
America. These plans were more numerous than is generally 
believed, but in such a series of studies as is here proposed no more 
than a very brief account of them can be given. Such a synopsis 
will form at least a part of the next chapter. 

During many of the succeeding chapters the provisions of the 
Federal Constitution will be discussed in the order in which they 
occur. In a subsequent stage, however, the related topics will be 
considered collectively and comparative method frequently employed. 
In the domain of political science this method will be found not 
less valuable than in other fields. 



OHAPTEB J I 

PLANS OF UNION 

About the time that a committee was appointed by the 
Continental Congress to prepare a declaration of independ- 
ence another was chosen to draw up a 
Articles of constitution of government. Both the dec- 

Confederation laration and 1he const inn ion were duly 
Failed. reported by the committees. The first was 

adopted July 4, 1770. Years passed, how- 
ever, before the thirteen states ratified the instrument of gov- 
ernment. This document, known as Articles of Confederation 
and Perpetual Union, was not adopted by all the states until 
March, 1781. In another connection its principal defects 
will be noticed. At present it will be sufficient to observe 
that it proved even less adequate to meet the requirements 
of peace than those of war. As a constitution for the new 
Union the Articles of Confederation failed completely. From 
one point of view this is the more singular because the Amer- 
ican people of that generation had considerable experience 
in making constitutions. Indeed, more than one hundred 
years before they had tried their skill in drafting articles of 
confederation. Of this attempt, as well as of other theories 
and plans of union at various times proposed, the remaining 
pages of this and a part of the succeeding chapter will treat. 

Between 1643 and 1776 many plans were suggested for a union 
of the English colonies in North America. Of these plans this book 
can give only the merest outline. In point of time the first of the 
leagues formed was the confederation known as the United Colonies 
of New England. The date of this compact, 1643, suggests not only 
the motive which led certain settlements to unite but to some extent 
indicates the law of progress in political development, that is, 
necessity. 

Early in his reign Charles I and Parliament engaged in some 
light skirmishing over the Petition of Right. Later the disputes 

13 



14 PLANS FOB UNION 

concerning questions of tonnage and poundage and ship money 
brought the King and Parliament to an open rupture. On October 
23, 1642, their respective armies met at Edgehill. This was the 
beginning of a terrible civil war which for years engrossed all the 
attention and all the resources of Cavalier and Roundhead. In 
scenes of slaughter at home the distant plantations were forgotten. 
No assistance could be expected from England, and the American 
settlements were compelled to take measures for their own pro- 
tection. The Pequods, indeed, had perished, but a generation was 
yet to pass before the followers of Philip were to be swept from 
their hunting grounds. Not only was there apprehended some fear 
of Indian uprisings, but the Dutch, who might become more formi- 
dable enemies, were looking with interest toward the Connecticut 
valley. One of the English plantations, New Haven, was engaged 
in disputes with the Swedes in what is now the state of Delaware. 
While the French were at Port Royal and as early as 1608 had 
established themselves at Quebec, they were too feeble and too 
remote to excite for the present any great apprehension. This was 
the condition which, in 1643, led to a union of Massachusetts, 
Plymouth, Connecticut and New Haven. Not being of the same 
church fellowship the people of Rhode Island and Providence 
Plantations were excluded from membership in this confederation. 

The Articles of Confederation, as the compact between 
these provinces was called, set forth in the picturesque 
language of the time the reasons for forming 
Earliest this earliest union.* Though it was designed to 
Union. last forever, the confederation existed only forty 
years. There was to be among its members no 
subordinate league. In each community commissioners were 
empowered to take a census of all males between the ages of 
sixteen and sixty years. The burdens, as for instance those 
of a just war, were to be apportioned according to. this 
census; that is, the most populous province was to bear the 
heaviest burden. Any advantages resulting from such wars 
were to be distributed among them on the same basis. In 
America this was the first attempt at a federal apportion- 
ment of public expenses. 



* Massachusetts, Plymouth, New Haven, and Connecticut were the members 
of this early union. 



UNITED COLONIES OF NEW ENGLAND 15 

If any member of the confederation was invaded, Massachusetts 
was to furnish one hundred men, and each of the other provinces 
forty-five. If the danger was not grave, each community could send 
fewer soldiers though in the same proportion. There was also a 
provision by which any plantation was authorized to get assistance 
from its neighbor. As population increased, the quotas of troops 
were to be reapportioned. If a community made unjust war, she 
was herself to bear the charge and was also required to make 
satisfaction to her invaders. 

To manage the affairs of the confederation two commissioners 
were to be chosen from each of its four members. These delegates, 
however, had no authority to interfere in those matters that par- 
ticularly concerned the members of the league. If the eight commis- 
sioners were unable to agree on a proposed measure, six of them 
were empowered to settle it. If, however, six could not concur, the 
proposition was to be referred for the consideration of the respective 
general courts or legislatures. The commissioners were to meet 
once in each year, though they might be convoked in special session. 
They assembled at Boston, Hartford, New Haven and Plymouth; 
but there appears to have been a provision by which they met in 
Boston during two successive years. The compact seems also to 
have contemplated the choice of a permanent capital which would 
be "commodious for all jurisdictions." From their own number 
the commissioners were to choose a president, but he had no veto 
either absolute or qualified. 

In these articles there was likewise a provision for the surrender 
of fugitives from justice and the delivering up to their masters all 
runaway servants. Without the consent of at least six commis- 
sioners the members of the union could not engage in war. In an 
extreme emergency four commissioners were authorized to adopt 
defensive measures, if the others did not attend. An obscure pro- 
vision appears to hint at the federal consideration of a breach of 
these Articles, but it does not appear precisely how the delinquent 
member was to be coerced. 

As will hereafter appear, several of the provisions of this 
first confederation find a place in the Constitution of the 
United States. What is equally important for the student to 
remember is that this first union was suggested by necessity 
and was of native origin. 



CHAPTER III 



PLANS OP UNION 



The rude constitution for the United Colonies of New England 
has been noticed in the preceding chapter. The second plan, still 
more vague in outline, was prepared in England. Immediately after 
the Restoration, Charles II created a Council of Foreign Planta- 
tions. Its commission, dated July 4, 1660, declares it the belief of 
the King that colonies so considerable, and by him so affectionately 
regarded, should not longer remain loose and scattered but for their 
improvement should be brought under uniform regulations. The 
principle underlying this action was military in character. England 
was not yet in undisputed control of America, for Wolfe's victory 
was a century in the future. 

Four years later, 1666, a treaty was negotiated and ratified by 
Maryland, Virginia and Carolina to stop planting tobacco for one 
year. This league, as recited in the preamble of the agreement, 
was formed because "the quantity of tobacco made in the country 
has bcome so great that all markets have been glutted with it, and 
the value is so low that the planter is rendered incapable of sub- 
sisting." This temporary union, it will be seen, had its origin in 
the supposed necessities of the planters, and did not, as in the case 
of so many plans and theories, proceed from military considerations. 

In 1677 Maryland invited Virginia to unite with herself 
and New York in a treaty of peace with the Seneca Indians, 

and during the course of the year a conference 
Meeting of with that tribe was held at Albany. This 
North and appears to have been the first meeting of the 
South. North and the South to attain a common object. 

Five years later the idea of a confederation was 
in the mind of Culpeper, of Virginia, and several years 
afterward one was suggested by Nicholson. To the same 
period, 1G84, belongs the conference with the Five Nations. 
This was held at Albany under the auspices of Governor 
Dongan and was attended by representatives from Virginia, 
Maryland, Massachusetts and New York. 



* Horace White, Money and Banking, p. 6. 
X6 



penn's and other plans 17 

The fall of James II, in 1688, put an end to his purpose to 
unite under the Crown all the English plantations between 
the Delaware and the St. Lawrence. In the succeeding reign 
(lie massacre of Schenectady (1690) prompted Massachusetts 
to invite several of the colonies to meet at New York. In 
April, delegates from three New England plantations met 
others from New York and by a military treaty agreed to 
raise 855 men for the better defense of Albany. In this era 
the motive to form a union was a fear of the enterprise or, 
as it was termed, the "boldness" of the French. 

In 1696-7 William Penn proposed a "briefe and plaine scheam" 
to make more useful to the crown the English colonies in North 
America; also to promote their own peace and safety. The proposed 
congress was to consist of twenty members, "qualified by sense, 
sobriety and substance," two from each of the existing colonies. 
The business of the congress was to adjust differences between 
provinces. The plan mentions several subjects which might occasion 
controversies between colonies. Chiefly because of its central loca- 
tion, New York was suggested as the place of meeting and its 
governor as the presiding officer of the congress. 

About the same time the Lords of Trade presented to the King a 
plan for the appointment of a Captain General over all the colonies 
from New Jersey northward; over several of them he was also to 
act as civil governor. Like most of the previous schemes this, too, 
was military in character. Though there was rather general opposi- 
tion to the recommendations of the Lords of Trade, the King seems 
to have appointed Richard, Earl of Bellomont, Captain-General and 
Governor of the province of New York and the American territories 
depending thereon. 

The brief interval of peace between the conclusion in 1697 
of King William's War and the beginning of Queen Anne's 
War, in 1702, produced the plan of D'Avenant, 
Plans for of a Virginian, and of Livingston, the first in 
Colonial 1698 and the last two in 1701. With D'Avenant 
Union. the welfare and safety of the plantations was 

the chief consideration. Because of their mod- 
ernness the criticisms of the Virginian are interesting. He 



IS PLANS OF UNION 

discusses the al lot men I of representatives to any general 
convention, the benefits, social and other, to be deprived 
from the proposed congress, and states the reasons for his 
objections to seeing New York derive from the other colonies 
a considerable revenue and its governor an added dignity. 
In forms slightly different we still have these questions with 
us. Livingston's plan would extend over all the colonies on 
the mainland a single form of government, and for conven- 
ience of administration it would arrange them into three 
groups, viz. : Virginia and Maryland were to be annexed to 
the Carolinas; a part of Connecticut, New York, the Jerseys, 
Pennsylvania and Newcastle were to form the second 
division, while the remainder of Connecticut, Massachusetts, 
New Hampshire and Rhode Island were to constitute the 
third confederacy. 

In 1721 the Earl of Stair outlined a somewhat elaborate scheme 
for the better government of the West Indies, and during the same 
year the Lords of Trade in a report to the King suggested for a 
similar purpose the appointment of a Lord Lieutenant or Captain 
General, from whom the governors of all colonies should receive 
their orders in all matters pertaining to His Majesty's service. 
Neither proposal appears to have been followed by any important 
consequences. 

In the following year, 1722, Daniel Coxe, of New Jersey, likewise 
recommended the appointment of a Lieutenant or Supreme Gov- 
ernor to whom the governors of all the colonies should be sub- 
ordinate. A pamphlet published in 1751 by Archibald Kennedy 
pointed out the importance to British interests of winning and pre- 
serving the friendship of the Indians. It also recommended the 
annual meeting at New York or Albany of a congress to be com- 
posed of commissioners from each colony. 



ALBANY PLAN 19 

Better known, however, than any of these proposals for a 
union was the Albany Plan of 1754. As early as the pre- 
ceding year the hostile attitude of the French and 
The their Indian allies was well known both in England 

Albuny and America. This led the Lords of Trade to 
Plan. direct the holding of a conference at Albany with 
those Indian nations friendly to the British. In 
that city representatives from New Hampshire, Massachu- 
setts, Rhode Island, Connecticut, New York, Pennsylvania 
and Maryland met on June 19th. As will be seen, Virginia, 
for reasons of her own, sent no delegates. Franklin bad 
previously published in bis Gazette "Shorl Hints Towards 
a Scheme for Uniting the Northern Colonies." To these be 
appended the device of a serpent separated into parts, each 
designating a colony. Over this device was the motto "Join 
or Die." These hints he afterward developed and submitted 
to the commissioners at Albany. 

This well-known plan proposed a humble application for 
an act of Parliament by virtue of which one general govern- 
ment might be formed in America. Under it each colony 
was to retain its constitution except in such particulars as 
it would be changed by the proposed act. This general gov- 
ernment was to be administered by a President General, 
appointed and supported by the crown, and by a grand 
Council to be chosen by the colonial assemblies. After the 
passage of the proposed act the House of Representatives 
in each assembly should choose members for the Council in 
the following proportions : 

Massachusetts Bay 7 

New Hampshire 2 

Connecticut 5 

Bhode Island 2 

New York 4 



20 PLANS OF UNION 

New Jersey 3 

Pennsylvania 6 

Maryland 4 

Virginia 7 

North Carolina 4 

South Carolina 4 



48 

This distribution of delegates, however, was only tempo- 
rary, for after the first three years members were to be 
allotted among the colonies in proportion to their contri- 
butions of money to the general treasury. The basis of 
representation was still property, not men. The number of 
these delegates, however, could not be less than two nor more 
than seven. The first meetings were to be held in Phila- 
delphia and subsequently in places agreed upon at the suc- 
cessive meetings of the congress. The Council was to meet 
annually, and more frequently if an emergency appeared 
to require it. It could not be dissolved nor continued in 
session for more than six weeks at a time without its own 
consent or a special command of the Crown. During their 
sessions, as well as the journeys to and from the place of 
meeting, members were to be allowed a compensation of ten 
shillings sterling per day. 

The Grand Council was empowered to make all laws neces- 
sary for the regulation of the Indian trade; to raise and 
pay soldiers as well as to build forts for the defence of any 
colony, but it could not impress men without the consent of 
the colony in which they were residents; it could also equip, 
vessels for coast defence and for the protection of trade; 
until governments were regularly organized the Council 
was not authorized to make laws for the regulation of new 
settlements. For these purposes it could lay and collect 



ALBANY PLAN 21 

taxes, but in collecting such taxes they were rather to 
discourage luxury than unnecessarily to burden industry. 
Finally the Council was empowered to appoint a particular 
treasurer for each colony; also a general treasurer. 

As soon after bis appointment as he could conveniently 
do so, the President General was required to convoke the 
Council. His assent was necessary to the validity of all 
legislative acts, and it was his duty to execute such measures. 
He was also vested with power to direct, with the advice 
of the Council, all Indian treaties concerning the general 
welfare; also to conclude peace and make war. He could 
nominate and, with the consent of the Council, appoint all 
military and naval officers; on the oilier hand, the nomina- 
tion of Civil officers was made by the Council and confirmed 
by the President General. In case of his death the speaker 
of the Council was to succeed to his duties and powers and to 
continue till the King's pleasure was made known. 

Unless it had been previously appropriated to particular 
purposes, no money was to be issued except by joint orders 
of the President General and Council. General accounts 
were to be settled and reported annually to the several 
assemblies. Twenty-five members were to constitute a 
quorum of the Council, but there should be at least one 
representative from a majority of the colonies. 

All laws were to be as nearly as possible in harmony with 
the laws of England ; they were promptly to be transmitted 
for approbation to the King in council, and if not disap- 
proved within three years after such presentation they were 
to be in force. 

Of the plan of union here briefly outlined Franklin says 
"the assemblies all thought there was too much prerogative 
in it, and in England it was thought to have too much of 
the democratic." Therefore it was promptly rejected by 
both the colonial assemblies and the Lords of Trade. 



22 PLANS OF UNION 

Prom the same time, 1754, there has also come down the rough 
draft of a scheme for a general confederation. This, like so 
many others, was almost entirely military in character. A plan 
in the handwriting of Hutchinson is also in existence. In 1760 
Dr. Samuel Johnson, President of King's College (now Columbia 
University) was considering the subject. Of his essay it is sufficient 
to say that it was by no means an important contribution to political 
science. 

Though the Stamp Act Congress of 1765 prepared no 
plan of union, its assembling was a most important act of 
union. An account of the "resolves" of that 
Stamp Act body belongs to the political history of the 
Congress. United States. The same observation is true 
of the first Continental Congress (1774). It 
brought forth no plan for the organization of a confedera- 
tion; its acts, however, were acts of union. For the con- 
sideration of that Congress a plan of union was pre- 
pared by the Pennsylvania loyalist, Joseph Galloway. In 
many of its provisions this scheme was identical with 
the Albany plan suggested precisely twenty years before. 
After being considered and sent to a committee this sketch 
was reconsidered and with all debate upon it was stricken 
from the records of the Congress. 

Notwithstanding the failure of his plan of 1751, Franklin 
in 1775 offered to the Congress the first sketch of articles 
of Confederation. With this outline before them 
Articles it is difficult to understand how the Congress 
of Union committed so gross a blunder in framing the 
Proposed. Articles of Confederation and Perpetual Union. 
These could be amended only by the concurrence 
of every state, whereas the twelfth article of Franklin's plan 
empowered Congress to propose and a majority of the states 
to ratify amendments. This sketch of a constitution is 
further inferos! ing because of its provision for receiving into 
the Confederation of the United Colonies of North America; 



keith's plan 23 

"Ireland, the West India Islands, Quebec, St. Johns, Nova 
Scotia, Bermudas, and the East and West Floridas." These 
communities should then be "entitled to all the advantages 
of our union, mutual assistance and commerce." 

In ample histories of our Federal Constitution the pre- 
ceding plans of union are, with a single exception, more or 
less carefully described. There was, however. snl>- 
Keith's mitted to the Lords of Trade and Plantations by 
Plan. Deputy Governor Sir William Keith, of Pennsyl- 
vania, a most interesting communication recom- 
mending the formation of a Union for the purpose of ex- 
tending among the Indian nations the influence and the 
trade of Great Britain. Though the existence of this com- 
munication is not generally known ami the assertion is 
sometimes made thai no such suggestion was ever offered, 
Sir William's manuscript was once in the possession of the 
writer. 

In another form it was stated in the Introduction thai 
as early as June 12, 177(>, a committee of the Continental 
Congress had been appointed to frame a 
Articles of constitution of government, and that until 

Confederation March 1, 1781, that instrument had not been 
Defectire. approved by all the states. The Articles of 

Confederation and Perpetual Union then 
adopted, proved unequal to the demands of war and were 
found even less adequate to meet the requirements of peace. 
In their preparation all the schemes, theories and plans of 
union described in the preceding pages antedated the 
Articles of Confederation, so likewise did several of the 
state constitutions. With these for guides the deficiencies 
of the Articles are less excusable. 



24 PLANS OF UNION 

When, toward the close of 1783, the last British soldiers 
sailed away from the United States, the embarrassments of 

the new union were by no means at an end. 
Dangers Indeed, the continued presence in the country of 
to Union, an enemy served in some sort as a bond of union. 

It was only when the last armed foe had de- 
parted from the scenes of recent war that patriots began 
carefully to consider the situation of the infant republic. 
Whether that was examined from within or from without 
the prospect was far from encouraging. In the latter view 
the patriot beheld the possessions of Spain separating him 
from the Mexican Gulf and beyond the Mississippi stretch- 
ing away to the distant Pacific. He knew also that a large 
debt was due to France and that the revenue of the Con- 
federation was not sufficient to pay even the interest on 
those timely and generous loans. Still more serious was the 
occupation by British garrisons of various frontier posts 
such as Mackinaw, Detroit and Niagara. Hastily examined 
these were the most conspicuous objects in the world out- 
side. At home the situation was even more gloomy. An 
account of the domestic troubles of that critical period 
belongs to the political history of the United States. In 
these studies the subject can be only briefly noticed. 

Long before the commencement of the Revolution, Benning 
Wentworth, an enterprising governor of New Hampshire, 
encouraged the people of his province to 
New York and take up the unoccupied lands beyond the 
New Hampshire. Connecticut Biver. Massachusetts and 
Connecticut, too, furnished pioneers for 
that region. With these states no serious controversy ever 
arose. New York, however, was more tenacious of what she 
regarded as her rights in the district and endeavored to 
assert her authority over it. At the commencement of the 
Bevolution this controversy concerning the title to what was 



COLONIAL QUARRELS 25 

then known as the New Hampshire Grants was beginning 
to assume the appearance of a civil war. Constables from 
Albany were mobbed and the militia defied. Indeed, when 
the struggle for American independence began, the leading 
men of that district, Ethan Allen among them, were by the 
New York authorities regarded as outlaws. The dispute 
sank to rest with 1 he outbreak of the war. but when inde- 
pendence was achieved the quarrel was renewed. 

With the Stale of Connecticut, New York had another 
kind of controversy. When the citizens of that common- 
wealth attempted to sell their productions 
New York and in New York City, the authorities sought 
Connecticut. to tax them for the privilege. Not a cart- 
load of firewood could be delivered at the 
back-door of any residence until there had tirst been paid a 
heavy duty. Sloops from Connecticut were required to pay 
fees at the custom house as was done by vessels from Liver- 
pool or Amsterdam. This attempt to embarrass their trade 
was resented by the people of Connecticut. At a great 
meeting of business men held at New London it was unani- 
mously agreed to suspend all commercial intercourse with 
New York. Under a forfeiture of $250 for failure to keep 
his promise each merchant pledged himself not to send for 
a period of one year any goods into New York. In that 
era such meetings usually heralded war. 

With its population of 30,000 New York appeared to the 
farmers of New Jersey to be both a convenient and profitable 

market. They had long been supplying the 
'New Jersey and city with butter, cheese, poultry and 
New York. garden vegetables. Like the farmers from 

Connecticut they, too, were taxed by the 
policy of New York. Their legislature, however, was in a 
situation to retaliate. The merchants of that city had re- 
cently erected on Sandy Hook a lighthouse for the benefits 



20 PLANS OF UNION 

of their commerce. By way of retaliation the legislature 
of New Jersey promptly imposed upon it a tax of $1,800 
per year. 

Far more serious, however, than these commercial differ- 
ences was a dispute between Pennsylvania and Connecticut 
for the possession of the Wyoming valley. 
Connecticut and By a judicial decision of 1782 this terri- 
Pennsylvania. tory was awarded to Pennsylvania. In 
the decree of the Federal court the gov- 
ernment of Connecticut seems gracefully to have acquiesced. 
This region, "fair Wyoming," had been the scene of the 
massacre of 1778. It was just beginning to recover from 
that blow, when in tbe spring of 1784, owing to a sudden 
and unusual rise in the Susquehanna, drifting ice and 
swollen waters carried death and destruction throughout 
that unfortunate region. "Houses, barns, and fences were 
swept away, the cattle were drowned, the fruit trees broken 
down, the stores of food destroyed, and over the whole valley 
there lay a stratum of gravel and pebbles."* The wretched 
people were perishing of cold and hunger. In these circum- 
stances President Dickinson urged the legislature of Penn- 
sylvania to send relief. That body was not only deaf to 
the Governor's humane appeal but appears to have looked 
upon the disaster as a visitation of Providence. The hated 
Yankees should have stayed in Connecticut where they be- 
longed. The Lord had merely punished their trespasses. 
Partly by the neglect and partly by the connivance of the 
Legislature these unhappy people were proceeded against 
with extreme severity. The Pennsylvania commander, a 
creature named Patterson, "attacked the settlement, turned 
some five hundred people out of doors, and burned their 
houses to the ground. The wretched victims, many of them 
tender women, or infirm old men, or little children, were 



John Fiske, The Critical Period of American History, p. 148. 



COLONIAL DISORDERS 27 

driven into the wilderness at the point of the bayonet, and 
told to find their way t<» Connecticut without further delay. 
Heartrending scenes ensued. .Many died <>f exhaustion or 
furnished food for wolves.''* 

Patterson had done his work more thoroughly than either 
the land speculators or the lawmakers of Pennsylvania ex- 
pected. Colonel Armstrong was thereupon ordered into the 
country, lie promised the wretched people thai if they 
would lay down their arms, he would protect them, (in this 
assurance they surrendered their weapons. To the number 
of seventy-six they were immediately marched off as prisoners 
and lodged in the jails at Eastou and elsewhere. 

In New England the tidings of such deeds aroused the 
greatest indignation. This incident shows very exactly the 
notions of interstate comity which prevailed in the years 
immediately succeeding the Revolution. 

The paper money craze was producing in Rhode Island 
almost every sort of mischief. Except the business of the 
bar-rooms, trade of all kinds was at a stand- 
Confuslon in still in Providence and Newport during the 
Rhode Island, year 1786. Mobs attempted to storm provi- 
sion stoics. For refusing to bring their 
produce to the cities, farmers were threatened with violence. 
Wealthy merchants threatened to leave the Slate, which was 
everywhere reviled and which then acquired the name 
Rogues' Island. 

The defeat of rag money in Massachusetts hastened the 
insurrection under Shays. At Great Barrington, Northamp- 
ton and Worcester the courts were broken up 
Shay's by angry mobs. A large army was required to 

Rebellion, disperse the great body of insurgents, and by 
January, 17ST, it was to a great extent ac- 
complished. The expense of equipping the force under Gen- 

* Ibid., p. 149. 



28 PLANS OF UNION 

era] Lincoln was borne not by the commonwealth but by 
some wealthy merchant of Boston. The State treasury was 
practically empty. Though not of so grave a character, 
there were numerous disturbances in other parts of the union. 
More interesting, because of its consequences, was the 
question between Maryland and Virginia of navigating the 

Potomac. Early in 1785 commissioners met 
Maryland and at Washington's house at Mount Vernon. 
Virginia. Before separating they agreed to recjommend 

to the legislatures of their respective states 
the calling of a convention to meet at Annapolis in the 
following year. Maryland invited her neighbors, but Vir- 
ginia issued an invitation to all the states. However, only 
five, New York, New Jersey, Pennsylvania, Delaware and 
Virginia, attended. Though Maryland had moved in the 
matter, she was not represented at the Annapolis conven- 
tion. With the proceedings of that meeting this chapter 
is no further concerned than to observe that because of the 
partial attendance of the commonwealths it was concluded 
to attempt nothing more than the preparation of an appeal 
to all the members of the Union to send delegates to a con- 
vention to meet in the following May at Philadelphia. With 
this brief sketch of the anarchic tendencies following the 
acknowledgment of American independence it will be easier 
to comprehend the task and the achievement of the consti- 
tutional convention of 1787. 



CHAPTER IV 

THE CONSTITUTIONAL CONVENTION 

The closing paragraphs of the preceding section suggest, 
and American political history demonstrates, that by the 
year 178G the infant republic had begun to drift rapidly 
toward anarchy. This unmistakable tendency was perceived 
by the commissioners who met at Mount Vernon in 1785, 
and in the following year was still more keenly felt by the 
delegates who composed the Annapolis convention. Except 
a few demagogues here and there no one denied the existence 
of these alarming symptoms. If the physicians of the state 
were to prescribe a remedy, it was necessary that they act 
quickly. 

The Constitutional Convention did not meet an hour too 
soon. Before the second Monday of May, 1787, delegates 

began to arrive in Philadelphia. With 
Constitutional representatives in attendance from nine 
Convention. states, the Convention was called to order 

on the 25th of that month. It closed its 
sessions on September 17th following. Of the seventy dele- 
gates appointed but fifty-five consented to serve, and of 
these only thirty-nine signed the finished draft of the pro- 
posed constitution. 

Before entering upon a summary of the work of the Convention 
it may be necessary to make a few general statements concerning 
its members. Of the fifty-five delegates some, like Washington, its 
president, Franklin and Roger Sherman, had arrived at maturity 
of years and judgment. Because of their legislative, administrative 
or other experience they would be inclined to put upon their powers 
as delegates an enlarged construction. The events of the Seven 
Years' War were familiar to them all, and even King George's War 
had not yet become a dim tradition. To men of this type should 
be ascribed the principal share in the work achieved. To this class 

29 



30 THE CONSTITUTIONAL CONVENTION 

belonged Hamilton, a much younger man, who seems to have had 
an intuitive grasp of political problems; also Madison, a diligent 
and thoughtful student of history and government, and James Wil- 
son, a profound thinker on constitutional questions. Belonging in 
part to the same class were: General Charles C. Pinckney, Rufus 
King, Nathanael Gorham, Oliver Ellsworth, Governor Edmund Ran- 
dolph, of Virginia, and John Rutledge. 

A fact which had some permanent influence on the work 
of the Convention was the presence in it of several eminent 
members of foreign birth. Alexander Hamil- 
Foreign-born ton, by many regarded as the most remark- 
Dclegates. able man in the Convention, was born in the 

island of Nevis in the West Indies. Kobert 
Morris was a native of Lancashire, England. McHenry, 
Butler, and, according to some accounts, William Paterson 
were of Irish birth/* James Wilson, a native of Scotland, 
was one of the ablest lawyers of the Convention. These 
delegates could sever more easily than natives the ties which 
bound them to their States, and therefore could more easily 
consider conditions beyond the borders of their own com- 
monwealths. The influence which they had upon the Con- 
stitution in any special sense, however, was probably con- 
fined to its generous treatment of foreign-born citizens in 
the matter of holding office. 

As stated above, George Washington, the most distin- 
guished and one of the wealthiest men in America, was 
chosen president of the Convention. At one 
Plans Before time or another twelve states were repre- 
Convention. Rented, Rhode Island alone sending no dele- 
gates. Considerations of space will not per- 
mit an examination of the various plans submitted to the 
Convention. Of these the principal were: The Virginia 
plan, the New Jersey plan, presented by Paterson, the plan 
of Charles Pinckney and that of Hamilton. 



Patterson was born at sea. 



VIRGINIA AND OTHER PLANS 31 

About June 19th these different .schemes of government 
were submitted to a commit toe. That offered by Virginia 
became the basis upon which t he Convention 
Virginia Plan continued to work. An account of the sue- 
Discussed. cessive steps in the formation of the Consti- 

tution is of the greatest Interest, bu1 thai 
can be examined at Length in Madison's Journal of the 
Debates in the Constitutional Convention. From time to 
time the more important compromises will be noted. For 
the present it is sufficient to say thai the Virginia plan was 
generally supported by the large states; the New Jersey 
plan was more acceptable to the small states. This, how- 
ever, was no more than a revision of the Articles of Con- 
federation, and againsl that system there existed a fatal 
objection. It had failed. 

As is well known the American people generally did not expect a 
new constitution of government. What they did expect may be seen 
by an examination of the credentials of the delegates from various 
states. In the records of the New York Assembly appears the 
following: "Resolved, that the Hon. Robert Yates, John Lansing, 
Jun., and Alexander Hamilton, Esqrs., be, and they are hereby de- 
clared duly nominated and appointed delegates, on the part of this 
state, to meet such delegates as may be appointed on the part of 
the other states, respectively, on the second Monday in May next, 
at Philadelphia, for the sole and express purpose of revising the 
Articles of Confederation, and reporting to Congress, and to the 
several legislatures, such alterations and provisions therein as shall, 
when agreed to in Congress, and confirmed by the several states, 
render the Federal Constitution adequate to the exigencies of gov- 
ernment and the preservation of the union." 



32 THE CONSTITUTIONAL CONVENTION 

An examination of the credentials of the delegates shows 
on the part of the states no purpose to make a new con- 
stitution.* The credentials mention revision, 
What the alteration and amendment, and it was of amend- 
People ing not superseding the Articles of Confederation 
Wanted, that the people were thinking. It was soon ap- 
parent, however, that this system was so defec- 
tive that revision was impossible. It was at this stage of 
the work that the smaller minds in the Convention showed 
a strong inclination to obey to the letter the instructions of 
their respective states. Neither Lansing nor Yates dared 
disobey the directions of their Assembly, and they left the 
Convention without signing the Constitution. Hamilton, 
however, though his credentials were identical, put a broader 
construction on his powers as a delegate and signed the 
new instrument of government. What happened in the case 
of the representatives from New York also occurred among 
the commissioners from other states. 

When Governor Randolph on behalf of the Virginia dele- 
gates submitted his sixteen propositions for the deliberations 
of the Convention, it was evident that a de- 
The National parture from the existing system was con- 
Idea. tempi ated by the representatives of the most 

influential state. His resolutions that there 
should be established a national legislature, a national ex- 
ecutive and a national judiciary foreshadowed the intention 
of the Virginians. The idea of a national government in- 
cludes the notions of a body politic, of sovereignty and of 
allegiance. 



* Centr, The Republic of Republics, pp. 516-523. 



COMPROMISE 33 

The Virginia plan provided for a national legislature of 
two branches; for a national executive to be chosen by the 
national legislature and to be ineligible a 
Large States second time; also for a national judiciary 
and Small to consist of one or more supreme tribunals 
States. and of inferior tribunals. In the national 

legislature the states were to be represented 
according to their importance; that is, in proportion to 
either their wealth or population. Under the Articles of 
Confederation each state was entitled to one vote on every 
measure before the Congress; in other words, there was 
among members of the existing union perfect equality. It 
was natural that the commonwealths of small population 
would oppose any departure from that rule of representa- 
tion. Under the proposed system the Delaware commis- 
sioners saw a provision for inequality, and they prepared to 
withdraw at once from the Convention. Their action recom- 
mended in future greater caution in the proceedings, and 
for a time the matter was postponed. When, however, this 

delicate topic was reconsidered, a compromise 
Compromise, was agreed to. By its provisions the states 

were to be equally represented in one branch 
of Congress, and in the other to be represented in propor- 
tion to population. Up to June 13 the debate upon the 
Virginia plan continued. Soon after, the small states pre- 
sented the Paterson or New Jersey plan. 

As already stated, the New Jersey plan was little more 
than a revision of the existing Articles. It provided for 

authority to compel contributions to the gen- 
Neio Jersey eral treasury; also for the supremacy of the 
Plan. new plan. It contained several provisions 

which were afterward embodied in the Con- 



34 THE CONSTITUTIONAL CONVENTION 

stitution. In a remarkable speech Madison analyzed the 
New Jersey plan and exposed its defects. 
The Hamilton These were further elaborated by Hamilton, 
Plan. who submitted a scheme of his own. Prob- 

ably his plan contained more of the impor- 
tant ideas that finally found a place in the Constitution than 
did any one of the other drafts proposed. 

Despatch, energy and responsibility being the qualifica- 
tions desired in an executive it was soon agreed to vest the 
executive power in a single magistrate. If this 
A Single power was vested, for instance, in a board, there 
Executive, would be a lack of energy as well as despatch, 
and responsibility could not be fixed. It was 
at first agreed that the President would be chosen by Con- 
gress. To that method there were offered many objections; 
not the least of these was the fear that the President and 
the Congress would be constantly exchanging promises and 
votes. 

In constituting or making up the legislative branch the 
principle of proportional representation appeared conspic- 
uous. A deadlock was about to result 
A Compromise, when a committee was appointed to seek 
a compromise. About July 2 the Conven- 
tion adjourned to await its report. Of this committee the 
venerable Franklin was a member, and to him is usually 
ascribed the honor of having persuaded the large States 
somewhat to abate their demands. This they agreed to do 
by giving the small States equal representation in the 
Senate. The latter, on the other hand, consented to give 
the large States in 1 lie House of Representatives members 
in proportion to their population; also the exclusive right 
to originate revenue measures, that is, money bills. This 
arrangement gave in matters of taxation the principal share 
to the immediate representatives of the people. In other 



CONVENTION ADJOURNS 35 

words, the large States would control to a great extent all 
questions of revenue. 

When the Convention met, the functions of the judiciary 
were fairly familiar to the people of all the States. An 
important step was taken when it was 
The Term of resolved thai its jurisdiction should extend 
Good Behavior, to all matters which affected internal or 
external harmony. The tenure of good 
behavior for the judges of the United States Courts w;is. 
probably, borrowed from England, where, about the time of 
William of Orange, it was enacted that judges might con- 
tinue to hold their offices after the demise of the Cmwn: 
formerly a new sovereign appointed new judges. This sub- 
ject may be summarized by saying thai those provisions <»f 
the British system adapted to America were retained by the 
Convention. Those parts not in harmony with American 
notions were discarded. 

When the Convention had agreed upon a single executive. 
a legislature of two branches and a judiciary satisfactory 
to the delegates, its work was by DO means at 
Convention an end. They were still to determine whether 
Adjourns. slaves were persons <>r chattels: also to settle 
the question of their importation. It was nec- 
essary to agree upon the basis of representation in the most 
numerous branch of Congress; likewise upon the extent of 
congressional power over the subject of commerce. For the 
admission of new states provision was yet to be made. 
Indeed, many details were still to be considered. Having 
completed its work, the Convention adjourned on the 17th 
of September, 1787. 

Opposition to the proposed instrument of government 



36 THE CONSTITUTIONAL CONVENTION 

actually began in the convention. Lansing and Yates, 
delegates from New York, refused to sign the 
Constitution new Constitution; Gerry, of Massachusetts, 
Opposed. did likewise. Luther Martin, of Maryland, 

and Randolph, of Virginia, witheld their sig- 
natures. George Mason was grieved to find in the instru- 
ment no bill of rights. This objection gave the keynote to 
i he opponents of the Constitution. 

Soon after the adjournment of the Convention, the Con- 
stitution was laid before the Continental Congress, then in 
session in New York. In this body, Richard Henry Lee 
proposed that it be amended before it was submitted to the 
States. This would undo all that had been so painfully 
accomplished. 

In the Philadelphia Convention, James Madison had taken 
a leading part. During all that eventful summer he was 
never for more than a fraction of an hour 
Service of absent from the debates. He took careful notes, 
Madison. and more than any member present knew the 
history of every provision and quite as well as 
any understood the spirit of the entire instrument. When, 
therefore, Mr. Lee opposed the Constitution, on its submis- 
sion to Congress, it was fortunate for the future welfare of 
the new republic that Madison also had a seat in Congress. 
Like Lee himself Madison was a Virginian. His knowledge, 
his patriotism and his eloquence assisted greatly in speed- 
ing the new plan of government on its way. Despite every 
sort of opposition, the Constitution was sent forth for the 
ratification of the States. 

As "The Federal Farmer," Richard Henry Lee employed 



THE CONSTITUTION OPPOSED 37 

his ready pen to prevent adoption, and in the Virginia ratify- 
ing convention took advantage of his popular 
Centres of eloquence and endeavored to defeat it. 
Opposition. Besides Virginia, however, there were other 
important centres of opposition. In Massachu- 
setts, leaders as influential as Samuel Adams and Elbridge 
Gerry were in the ranks of the opposition, but the former 
was finally persuaded to surrender some of his views. 
Despite the able arguments of James Iredell, North Carolina 
rejected the Constitution. 

Notwithstanding the combined opposition of Patrick Henry, 
of Mason, of Grayson and Richard Henry Lee, the Virginia 
convention, by a slender majority, adopted 
Adoption by the new Constitution. These leaders were 
Virginia. ably supported by characters not now so well 

remembered but they were more ably opposed 
by Madison, Marshall, Randolph (now in favor), Pendleton 
and outside the convention by the great influence of 
Washington. 

It was in New York, however, that the opposition was 
best organized and, because of the "auxiliary interests" of 
Governor Clinton, most likely to succeed. 
New York Chancellor Livingston and John Jay ably 
Adopts. supported the few friends of the new plan who 

had been chosen to attend the Poughkeepsie 
convention, but it was on the broad shoulders of Hamilton 
that the principal part of the burden rested. In a wonderful 
speech, which lasted during a considerable part of an entire 
day, he defended the proposed system and won over to his 
side the leader of the opposition, together with many fol- 
lowers. When the vote was counted, it was found that thirty 
favored and twenty-seven opposed adoption. Tried by the 
test of winning votes few speeches in American history have 
been so effective as that of Hamilton. 



38 



THE CONSTITUTIONAL CONVENTION 



It was not, however, his splendid services in the New York Con- 
vention that won for Alexander Hamilton the distinction of being 

the ablest advocate of the Constitution. Scarcely in- 
The ferior in value to this achievement were his contribu- 

Fcdcralist. tions to The Federalist. This was a collection of 

eighty-five letters prepared by Hamilton, Madison and 
Jay and printed chiefly in the Independent Journal and The Packet, 
both of New York City. These essays were projected by Hamilton. 
Of the entire number five were written by John Jay. Prom his 
acquaintance with foreign relations he was chosen to discuss the 
value of union considered with reference to external affairs, and to 
discuss the Senate, which was to ratify treaties and confirm diplo- 
matic nominations. An injury at the hands of a mob compelled 
Jay to retire early from the work. The republican character of 
the new Constitution, and its harmony with existing institutions 
were among the topics to be treated by Madison, who had long re- 
flected on these subjects and who was then in New York as a mem- 
ber of Congress from Virginia. As to the number of essays con- 
tributed by Madison there is some difference of opinion. A book 
revised by himself in 1819 states the number of his essays at 
twenty-nine. This, the highest estimate, would leave to Hamilton 
fifty-one, and they cover a boundless field. It would seem that a 
few were written by Hamilton and Madison jointly. Some authori- 
ties credit Hamilton with many more. They appeared between 
October, 1787, and March, 1788, and were soon published in book 
form under the title The Federalist. In both forms the essays 
were widely read, and there is no doubt that they had considerable 
influence in securing the adoption of the Constitution. If they did 
not influence or reach the people, they at least furnished to popular 
leaders unanswerable arguments. 

The small States and the commonwealth of Pennsylvania 
promptly adopted the Constitution. To a great extent their 
opposition was withdrawn after they 
Constitution were given equal representation in the 

Becomes Binding. Senate. Khode Island called no ratify- 
ing convention, and, as stated above, 
North Carolina rejected the proposed system. The instru- 
ment went into operation in June, 1788, when it had been 
ratified by the ninth state. Many of the succeeding chapters 
will he devoted to an explanation of the Constitution thus 
prepared. 



CHAPTER V 

THE PREAMBLE 

The Constitution of the United States may be roughly 
divided into five principal parts, //':.: the Preamble, the 
Frame of Government, the Schedule, the Bill of Bights, 
and the Civil War Amendments, ruder these subdivisions 
it will be briefly examined. Constitutions, general laws, 
contracts and other legal instruments have preambles; these 
set forth the purposes for which such instruments are 
designed. The preamble or clause which introduces the 
Constitution of the United States reads as follows: 

"We, the people of the United States, in order to form a more 
perfect union, establish justice, insure domestic tranquillity, provide 
for the common defence, promote the general welfare, and secure 
the blessings of liberty to ourselves and our posterity, do ordain 
and establish this CONSTITUTION for the United States of 
America." 

For several reasons this preamble is worthy of the most 
careful consideration. In the first place, it contains a 
concise and rather comprehensive statement of 
The the objects of government, viz.: to establish 

Preamble. justice, to insure domestic tranquillity, to pro- 
vide for the common defence, to promote the 
general welfare and to secure the blessings of liberty. It 
states also by what authority the Constitution was made. 
Examined grammatically the main thought is, "We, the 
people of the United States . . . do ordain and estab- 
lish this Constitution for the United States of America.'- It 
is not from rules of grammar, however, that we can arrive 
at the precise significance of this sentence. 

39 



40 THE PREAMBLE 

The Constitution, indeed, was made by the people of the 
United States, but it was by the people acting through state 
governments. It was not made by the 
Meaning of We, immediate representatives of the people, 
the People. for these were found in the legislatures 

and other departments of the several 
state governments. The people of each state elected mem- 
bers to their respective assemblies. It was by these bodies 
that delegates were appointed to attend the Constitutional 
Convention. In other words, the framers of the Constitu- 
tion were chosen only indirectly by the people. Their cre- 
dentials were received not from conventions but from legisla- 
tive bodies previously existing and which were created for 
very different purposes. When, however, the delegates thus 
appointed had prepared a draft of a constitution it was 
not binding upon any state or even upon any individual. It 
still lacked approval, and this approval was given not by the 
respective legislatures but by conventions chosen by the 
people. In this sense only was the Constitution ordained 
and established by the people of the United States, and it 
must be remembered that in ratifying it they acted by states, 

each giving independently its approval. 
Early Draft of One of the earlier drafts of the preamble 
Preamble. read: "We, the people of the States of 

New Hampshire, Massachusetts, Provi- 
dence and Rhode Island Plantations, Connecticut, New 
York, New Jersey, Pennsylvania, Delaware, Maryland, Vir- 
ginia, North Carolina, South Carolina and Georgia do 
ordain, declare and establish the following constitution for 
the government of ourselves and posterity." 



PRESENT FORM OF PREAMBLE 41 

In a later stage of its proceedings the Convention decided 
that the Constitution would become binding when approved 
by nine states. That is, the more perfect 
Present Form union would be entered into even if four 
of Preamble. commonwealths refused to join. As it 
could not be foreseen by the Convention 
which nine states would accede to the new union, the dele- 
gates were compelled to change the language of the preamble 
to its present form. 

In this connection it may be interesting as well as 

instructive to compare the preamble of our Federal Const i- 

tution with the preamble of the Con- 

Constitution of the federate Constitution adopted in 1861. 

C 071 federate The latter reads: "We, the people of 

States. the Confederate States of America, 

each state acting in its sovereign ami 

independent character, etc." From this brief historical 

inquiry it seems clear that in after times the opponents of 

State Rights sometimes made an unfair use of the language 

"We, the people of the United States," but for this there was 

some excuse. Even before the general adoption 

Fears of of the Constitution, Tat rick Henry, in the Vir- 

Henry. ginia ratifying convention, demanded by what 

authority the delegates used the language "we. 

the people of the United States." The eloquent Virginian 

feared that the phrase implied a fundamental change in the 

nature of the government. He believed that for the existing 

confederation there was a purpose to substitute a national 

government. 

On the other hand, the language of the preamble seems 



42 THE PREAMBLE 

carefully to exclude the notion that the states were about 
to form a temporary league. One of the objects 
Union of the Constitution was to form a more perfect 

Perpetual union. But the constitution of the existing 
union was entitled "Articles of Confederation 
and Perpetual Union." In other words, the delegates recom- 
mended a more perfect union than a perpetual one. It is 
difficult to perceive how language could more clearly describe 
the irrevocable nature of the compact about to be formed 
by the states. To enter the new confederation no coercion 
was employed. Once the commonwealths had entered, how- 
ever, there was no method provided by the Constitution for 
retracing their steps. In this view secession was a remedy 
outside the Constitution. Whether there was sufficient jus- 
tification for resorting to such a remedy is a subject that 
more nearly concerns the political than the constitutional 
history of the United States. 

Because of what has been said in the preceding chapters 
the remaining clauses of the preamble do not require any 

particular discussion. The estab- 
Justicc not Established lishment of justice is assigned as 
Before Constitution. one of the reasons for forming a 

new instrument of government. 
From this, however, it should not be inferred that there 
were no national courts. Under the Articles of Confedera- 
tion causes were tried and decisions were rendered by the 
existing tribunals, but as there was no power to enforce such 
decrees, justice could not be said to have been established. 
The necessity for insuring domestic tranquillity will be suffi- 
ciently apparent if we recall what was said on pages 63-69 
of chapter III. The other clauses of the preamble appear 
to be self-explanatory. For the present it does not seem 
necessary to make any further observations on the first part 
of the Constitution— THE PREAMBLE. 



A CONGRESS OP TWO CHAMBERS 43 

The second subdivision requires a more detailed examina- 
tion. The FEAME OF GOVEBNMENT consists of three 

parts, viz.\ a national legislature, a national executive, and 
a national judiciary. These will he considered in the order 
mentioned. 

The national legislature, or the Congress, consists of two 
branches, a Senate and a House of Representatives. Id the 

former the slates are equally represented; in 
Congress the latter they are represented in proportion 

Bi-cameral to population. The Congress consists of two 

houses because in 1787 all the slates, except 
Georgia, Pennsylvania and the district of Vermont, had 
lawmaking bodies of two chambers; thai is. the legislatures 
were bi-cameral. Furthermore, the British Parliament was. 
and it still is, composed of two houses. In a word, the law- 
making bodies familiar to the American people were gener- 
ally made up of two houses. 

The purpose of the Convention was not to surprise the 
people by proposing novelties for their acceptance but to 

make a new Constitution out of familiar mate- 
A Guiding rials. Indeed, this was a guiding principle with 
Principle. the framers of our Constitution. Thus in select- 
ing a name for the new lawmaking body they 
adopted a familiar one; that is, they called it a Congress. 
Under the Articles of Confederation there was a Congress of 
one branch, and though in the end that system failed com- 
pletely, the American people still regarded it with consid- 
erable affection. The Continental Congress had at least 
guided them to independence, and that was no ordinary 
achievement. In a word, the people were familiar with the 
name Congress, and they believed that it had some claims 
on their gratitude. 

Article I treats of the lawmaking body of the nation, 
article II is concerned with the national executive, and 



44 FRAME OF GOVERNMENT 

article III with tbe national judiciary. In other words, the 
first article explains the constitution of Congress, the second 
that of the Executive or President, and the third that of the 
United States Courts. 

Article I says that "all legislative powers herein granted 
shall be vested in a Congress of the United States, which 
shall consist of a Senate and House of Repre- 
The Sole sentatives." That is, no laws can be made by 
Lair maker, either the executive or the judicial department. 
Congress alone can legislate for the nation. 
Why this body consists of two houses has in part been 
explained. In another connection will be discussed the 
advantages of having two houses. Each will now be examined 
in turn. 

The House of Representatives is composed of members 
chosen every second year by the people of the several states. 
Every person is entitled to vote for 
Who Can Vote Representatives in Congress who is 

for Representatives, qualified to vote for members of the 
lower house of his own state legisla- 
ture. At present the House of Representatives is composed 
of 432 members. These are allotted among the states in 
proportion to population. Nevada, for example, has one 
member while New York has forty-three, because the num- 
ber of its inhabitants is thirty-seven times as great. For the 
purpose of apportioning Representatives the entire popula- 
tion of a state is now considered, except Indians who are not 
taxed. 

Before the adoption, July 28, 1868, of the Fourteenth Amendment 
the population of each state, for the purpose of determining its 
representation in Congress, was ascertained as follows: all free 
persons were counted; also three fifths of the slaves and all the 
Indians who were taxed. Therefore all untaxed Indians and two 
fifths of the whole number of slaves were not counted in estimating 



THE DECENNIAL CENSUS 45 

the Federal population. From this arrangement it is clear that 
before 1868 a Northern State equal in population to a Southern 
State would have in the House a larger representation, because it 
had few or no slaves. If, however, a direct tax were levied upon 
two such states the Northern would pay a greater share because of 
its greater representation in Congress. But in practice direct 
taxes were seldom imposed. As there are no longer any slaves, the 
three fifths provision is, of course, not now in force. 

In the Constitution provision was made for the taking of 
a census within three years after the first meeting of the 

new Congress. The first Federal enumera- 
te Census. tion of inhabitants was made in 1790, and, as 

the Constitution requires, a Federal census 
has been taken every ten years since. It was necessary, how- 
ever, to apportion members among the slates before the 
completion of the first census. These were allotted in pro- 
portion to the quotas of troops and the contributions of 
money furnished by the states during the Revolutionary 
War. On this basis sixty-live members were apportioned 
among the thirteen states. The Constitution. Art. I, Sec. 2, 
fixes the number to which each commonwealth was then 
entitled. From an examination of these numbers it will be 
seen that New York was given only six, whereas Virginia 
was allotted ten representatives. The student will find 
other evidences to show that since 17S7 the relative impor- 
tance of the states has greatly changed. 

A Eepresentative in Congress must have attained to his 
tw^enty-fifth year. At the time of his election he must have 
been at least seven years a citizen of the 
Qualifications. United States and an inhabitant of the 
state from which he is chosen. Any Repre- 
sentative may die, resign, or be expelled from the House. To 
fill vacancies thus occasioned the Governor of the state in 



40 FRAME OP GOVERNMENT 

whose representation the vacancy occurs, may call a special 
election to fill the unexpired term. Under 
Filling no circumstances whatever can either the 

Vacancies. Governor or the Legislature of a state fill 
any vacancy in the House of Representatives. 
In the case of United States Senators, as we shall see, it is 
different. Many powers exercised by the House are also 
vested in the Senate. There are, however, some powers per- 
taining to the House which are not shared by the Senate. 
For instance, the Senate cannot propose any bill for raising 
revenue, as, for example, a tariff measure; that must origi- 
nate in the House. This body has also the sole power of 
impeachment. With us this word means no more than the 
accusation and arraignment of a high civil official before 
some constituted tribunal. The Senate can never impeach 
or accuse, though it is the only tribunal which can try 
impeachments. On the other hand, the Senate has powers 
which are not possessed by the House. These will presently 
be mentioned. The student should remember 
House a Law- that the House of Representatives is never 
making Body, anything except a lawmaking body. In this 
branch of Congress members are apportioned 
among the states in proportion to population, not according 
to their respective areas or their differing degress of wealth. 
The House has no officers imposed upon it by the Constitu- 
tion. The members elect their Speaker and other officers. 

In the constitution of the Senate, where each state has 
two members, we see the confederate character of the union. 
In the House, where population deter- 
T ico- fold mines the number of representatives, 

Vature of Union. we see not less clearly the national 
principle. In the Continental Congress 
each state might be represented by from two to seven mem- 
bers, but whatever the number of delegates each state had 



QUALIFICATIONS OF SENATORS 47 

but one vote. There the voting was always by suites. Under 
the Constitution each Senator has one vote. Senators are 
chosen by the voters of the respective commonwealths. 

Vacancies may occur in the same manner as in the House, 
but they are not filled in the same way. The Governor of 
the state in which the vacancy happens is empowered to 
issue writs of election to fill such vacancies. The Legislature 
of any state may empower the executive thereof to make 
temporary appointments. Thus it will he aoticed that in a 
certain contingency the Governor of a state can appoint 
temporarily a United Stales Senator. As stated above, lie 
can under no circumstances till a vacancy in his state's 
representation in the House." 

A Senator in Congress must have attained to his thirtieth 
year; he must have been lor at least nine years a citizen 

of the United States, and when elected be 
Qualifications. an inhabitant of the state from which he 

is chosen. Except its presiding officer the 
Senate is empowered to choose all its officers. By the Con- 
stitution this office is assigned to the Vice-President of the 
United States. Unless the Senators are equally divided lie 
can vote on no question. The reason for this is clear. If he 
could vote, the state from which he comes would have three 
votes in the Senate. That would introduce a slight inequality 
in the political power of the states in that branch of Con- 
gress. In the absence of the Vice-President, or when he is 
exercising' the office of President of the United States, the 
Senate is empowered to choose a president pro tempore. 
Being always a Senator from some state this officer, if he 
desires, can vote on any question. If he could not vote, his 
state would not enjoy its equal representation in the United 
States Senate. 



* See Amendment XVII of the Constitution, p. 233. 



4S FRAME OF GOVERNMENT 

At first the United States Senate consisted of twenty 

members. These were divided into three groups or classes, 

viz. : first, second, and third. Those in the first 

Classes of class served two, those in the second four, and 

Senators. those in the third six years. Their terms would 

then expire as follows : 

1st Class 1789 + 2 = 1791 

2d Class 1789 + 4 = 1793 

3d Class 1789 + 6 = 1795 

The Senators chosen in 1791 to fill the places of those in 
the first class served till 1797 ; those elected to supersede the 
second class served till 1799, and those appointed to fill the 
places of Senators in the third class served till 1801. In 
other words, after the first arrangement Senators were 
elected for a term of six years. Nevertheless, as the terms of 
each group begin at intervals of two years, one 
Senate third of the United States Senate changes every 
Changes, two years. This results in some evident advan- 
tages. By adopting this method there will always 
be found in the Senate men experienced in lawmaking and 
fairly familiar with affairs both domestic and foreign. This 
tends to make the United States Senate, what indeed it is, 
an efficient parliamentary body. It likewise possesses the 
advantage of always containing members who have recently 
come from the people, and who are therefore in sympathy 
with them. 



THREE-FOLD NATURE OF SENATE 49 

Unlike the House, which is always a lawmaking body, tin- 
Senate exercises three kinds of functions, viz.: in connection 
with the House it prepares laws; it also 
Mixed tries impeachments. Furthermore, it ratifies 

Character of treaties with foreign powers and confirms 
Senate. Presidential nominal ions to office. In other 

words, it performs legislative, judicial and 
executive functions. These functions affect somewhat the 
qualifications of Senators. As. for instance, the matter of 
citizenship. 

The Senate shall have the sole power to try .ill impeach- 
ments. From this provision of the Constitution its framers 
expected much. In practice, however, it 
Judicial Function has proved rather unsatisfactory. "The 
of Senate. President, Vice-President, and nil civil 

officers of the United states'* may he 
impeached for treason, bribery, or other high crimes and 
misdemeanors. When the Senate si is for the purpose of 
trying an impeachment, the members are on oath or affirma- 
tion. The Chief Justice of the United States Supreme Court 
presides when the President is on trial. "No person shall 
be convicted without the concurrence of two-thirds of the 
memhers present." The next chapter will be introduced by 
a brief account of the principal officials who have been 
impeached. 



CHAPTER VI 

THE FRAME OF GOVERNMENT 

(Continued) 

In the United States the impeachment of a public officer is 
designed not so much for the purpose of punishment as for the 

prevention of further wrong-doing. This 
American Idea provision of the Constitution, as already 
of Impeachment. stated, has not worked so efficiently as 

its authors appear to have hoped, for 
in the entire course of American history only four civil 
officers have been convicted by this process. 

In the Colonial era it was never invoked because the chief execu- 
tive officers were responsible not to their respective assemblies but 
to British sovereigns. The State constitutions made before 1787 
borrowed it from England, where impeachment was employed for 
the purpose of removing from office a minister who had made 
himself obnoxious to Parliament. At that time its object was pri- 
marily to punish. Not having been invoked since 1806, the process 
has become obsolete in England. 

Early in the national period of our history William 
Blount, a United Stales Senator from Tennessee, engaged 

in a conspiracy to invade New 
A Senator is Orleans and the adjacent territory 

Not a "Civil Officer." with a land force to be supplied by 

himself and the assistance of a 
British fleet and attempt to wrest the entire region from 
Spain, a power with which the United States was then at 
peace. Furthermore, the French and Spaniards in that 
vicinity had given during the Revolutionary war many 
proofs of their friendship for America. Blount was 
impeached by the House of Representatives, and in Decem- 
ber, 1798, the Senate resolved itself into a court for his trial. 

50 



IMPEACHMENT 51 

The case was dismissed, however, on the ground that a 
Senator is not "a civil officer" liable to impeachment. Pre- 
cisely who are civil officers in the meaning of the Constitu- 
tion is nowhere stated, but the officers impeached have been 
Judges of Federal courts, a President and a cabinet officer. 
In March, 1803, the House impeached John Pickering, of 
New Hampshire, Judge of a United States District Court. 
The articles of impeachment charged him 
Judge Pickering with having made decisions contrary to 
Removed. law; also with drunkenness and profanity 

on the bench. By a party vote he was 
convicted by the Senate and removed from his judgeship. He 
was not, however, disqualified for holding office under the 
United States. 

Samuel Chase, a .Justice of the United Stales Supreme 
Court, was impeached in 1804 for including in his charges 
to grand juries bitter observations on 
Samuel Chase party politics; also for arbitrary and un- 
Not Convicted, just conduct in the trials of Fries and 
Callender. On the eight accusations 
charged against him he was pronounced not guilty. 
Again in December, L830, Judge Peck, of the Federal Dis- 
trict Court of Missouri, was tried on an 
Judge Peck impeachment charging him with arbitrary 

Not Convicted, conduct in punishing an attorney who had 
criticised one of his opinions. Failing 
the two-thirds majority. Judge Feck was acquitted. In 
1862 Judge Humphreys, of Tennessee, was 
Humphreys impeached for accepting an office uuder the 
Impeached. Confederate States and was unanimously con- 
victed. 
More important than any of these was the impeachment 
of President Johnson. On March 3, 1808, on behalf of 
the House of Representatives, managers appeared in the 



52 FRAME OF GOVERNMENT 

Senate, Chief Justice Chase being in the chair. Eleven 
charges were preferred against the President; of these the 
most important was his alleged violation of the Tenure 
of Office Act, a law passed in March, 1867. He had dis- 
missed from his cabinet Edwin M. Stanton, Secretary of 
War. After a trial lasting eighty-two days the Senate on 
May 16 came to a vote. Fifty-four 
President Johnson Senators were present; hence by the 
Not Convicted. constitutional provision it would re- 

quire the concurrence of thirty-six to 
convict. The result showed thirty-five in favor of conviction 
and nineteen in favor of acquittal. One more vote for con- 
viction would have removed President Johnson from his 
high office. 

Again in 1876 for lack of one vote William W. Belknap, 

Secretary of War, escaped conviction on impeachment for 

bribery. A later resort to this process 

Secretary Belknap was in 1905, when Judge Swayne, of 

Not Convicted. Florida, was impeached. He, too, was 

acquitted. 

Though the President can pardon all offenses against the 

United States, cases of impeachment are expressly excepted. 

From the decision of the Senate, there- 

Two Punishments fore, there is no appeal. On conviction 

May be Inflicted, the civil officer may be removed and 

disqualified for service under the United 

States. He may thereafter be tried in an ordinary court for 

crimes defined in the law. 

"The times, places and manner of holding elections for Senators 
and Representatives, shall be prescribed in each State by the Legis- 
lature thereof; but the Congress may at any time by law make or 
alter such regulations, except as to the place of choosing Senators." 

At this point it may be observed that Senators were formerly 
elected at the capitals of their respective States. Clearly it would 
not have been prudent for the States to permit Congress to deter- 



CHOOSING REPRESENTATIVES 53 

mine where their Legislature should meet. By virtue of the 
provision quoted, each commonwealth continued for many years after 
the organization of the Federal Government to regulate for itself 
the election of Senators and Representatives. On July 25, 1866, how- 
ever, a law passed by Congress established a uniform system. By 
the method then prescribed, and until recently it was in force, every 
member of each branch of the Legislature (on the second Tuesday 
after it had met and organized) was empowered to name by a viva 
voce vote a person for United States Senator. If no candidate 
received a majority in each branch of the Legislature, the houses 
met in joint session at noon on the following day and cast a ballot. 
This vote was repeated every legislative day until a Senator was 
chosen. 

The preceding paragraph describes the old method of 
electing United States Senators by the legislatures of the 
various States. Since the passage of the Seventeenth Amend- 
ment, Senators are chosen by the qualified voters of the 
States just as Representatives have always been. Any citi- 
zen who can vote for a Representative in Congress can vote 
for a Senator in Congress. For short, the former are called 
"Members" and the latter Senators. 

For a long time the manner of electing Representatives 
was likewise lacking in uniformity. Even within the same 
State members were chosen on different 
Members Chosen days. By Acts of Congress passed in 
on Same Day. 1871 and 1872 it was provided that elec- 
tions be by ballot, and that all Repre- 
sentatives be chosen on the Tuesday following the first Mon- 
day of November. By an amendment of the latter statute a 
few States are still allowed to hold Congressional elections 
somewhat earlier. 

"The Congress shall assemble at least once in every year, 
and such meetings shall be on the first Monday in December, 
unless they shall by law appoint a different day." Pursuant 
to this provision the Congress has been accustomed since 



54 FRAME OF GOVERNMENT 

1789 to meet on the first Monday in December. When, how- 
ever, a great emergency seems to require it, the President is 
empowered to convoke Congress in special session. To take 
measures for preserving the Union the Thirty-seventh Con- 
gress, in response to a proclamation of President Lincoln, 
assembled in extra session July 4, 1861. In the history 
of the Federal Government there have been about fifteen 
instances of meeting before the regular time. 

Perhaps the long and the short sessions can best be explained by 
following the career of a particular Congress. The first thing to 
remember is that the United States Senate is a body 
Long Session. with a permanent organization. On the Tuesday 
Short Session, after the first Monday of November, 1908, a new 
House of Representatives was elected, that is, it was ■ 
chosen in an even year. The members then elected, however, did 
not meet on the first Monday in December, 1908, because the pre- 
ceding Congress was in session till March 4, 1909, when its term 
expired. The House elected in November, 1908, did not meet until 
December, 1909. It will be noticed that between its election and its 
first meeting there elapsed an interval of thirteen months. When 
that Congress convened it continued in session till the summer of 

1910. This is called the long session, and it begins in the odd years. 
It met again in December, 1910, and, except for a brief adjournment 
during the Christmas holidays, remained in session until March 4, 

1911, when its term expired. This last is known as the short session. 

As previously explained, the membership of the United 
States Senate changes every two years only one third. After 
the inauguration of a President it is customary 
Executive to call what is termed an executive session of 
Session. the Senate. This is for the purpose of confirm- 
ing or rejecting nominations to office, or it may 
be for the purpose of acting upon treaties of importance. 
On such occasions it is not necessary for the House to meet 
because it does not share in either the treaty-making or the 
appointing power, 



A QUORUM 55 

Concerning the following provisions scarcely any com 
mentary is required: "Each House shall be the judge of the 
elections, returns and qualifications of its own members, and 
a majority of each shall constitute a quorum to do business ; 
but a smaller number may adjourn from day to day, and In- 
authorized to compel the attendance of absent members, in 
such manner, and under such penalties as each House may 
provide." 

From the very beginning of the Federal Government each House 
has exercised its constitutional authority to admit or exclude candi- 
dates for seats in Congress. At the opening of the Thirty-ninth 
Congress, December 4, 1865, there were present in the city of Wash- 
ington, Senators and Representatives from nearly all the late Con- 
federate States. A majority of them expected, no doubt, to be 
admitted without any unusual formality to seats in the respective 
Houses. They were not, however, so admitted but instead a Joint 
Committee on Reconstruction was appointed by Congress to inquire 
into conditions among the members of the late Confederacy and 
ascertain whether any of them had so far returned to their allegiance 
to the Union as to be entitled to representation in Congress. A 
favorable report was made in the case of Tennessee alone, and on 
July 24, 1866, by the admission of her delegation to Congress she 
was restored to her normal relations in the Union. 

By a quorum is meant, of course, a numerical majority. 
In the Senate, for example, a quorum is forty-nine — that 
is, forty-nine is a majority of ninety six, all 
A Quorum, the Senators to which the forty-eight States 
are entitled. It should be remembered that 
forty-nine Senators can engage in legislation, and that in 
most cases a majority of this quorum, twenty-five, can with 
the cooperation of the House pass laws. For the ratification 
of treaties, however, two thirds of the Senators present must 
concur. 

Under the Articles of Confederation the attendance of members 
was very irregular; hence the necessity of some compulsory pro- 
vision on this subject. Indeed, when the Constitution was about to 



56 FRAME OF GOVERNMENT 

be put into operation the old tradition made it difficult to get a 
quorum, and at first members came in very slowly. This tardiness 
in assembling was one reason why Washington was not inaugurated 
till April 30, 1789. 

"Each House may determine the rules of its proceedings, 
punish its members for disorderly behavior, and with the 
concurrence of two-thirds, expel a member." 
Two Thirds If a bare numerical majority could expel a 
Required for Senator or a Kepresentative there is no doubt 
Expulsion. that on occasions when party spirit is 
aroused the stronger element would some- 
times exercise its power by expelling members of the 
minority. This injustice would ultimately be opposed by 
force. 

"Each House shall keep a journal of its proceedings, and 
from time to time publish the same excepting such parts as 
may in their judgment require secrecy; and the yeas and 
nays of the members of either House on any question shall, at 
the desire of one-fifth of those present, be entered on the 
journal." 

"Neither House, during the session of Congress, shall 
without the consent of the other, adjourn for more than 
three days, nor to any other place than that in which the 
two Houses shall be sitting." 

"The Senators and Eepresentatives shall receive a com- 
pensation for their services, to be ascertained by law, and 
paid out of the Treasury of the United 
Compensation States. They shall in all cases, except for 
and Privileges. Treason, Felony and Breach of the Peace, be 
privileged from arrest during their attend- 
ance at the session of their respective Houses, and in going 
to and returning from the same; and for any speech or 
debate in either House, they shall not be questioned in any 
other place." 



SALARY OF CONGRESSMEN 57 

Under The Articles of Confederation each commonwealth paid its 
own delegates and was entitled to send to the Congress from two to 
seven members, but whatever the number sent they had collectively 
only one vote. Under that system Rhode Island exercised upon 
legislation as much influence as did Virginia. If a State sent seven 
delegates to the Continental Congress, she was under a heavier 
expense than one which sent only two delegates. This system 
resulted in minimum representation, for States that were distant 
from the capital would generally not care to send and maintain a 
large delegation. Under the Constitution, however, Congressmen 
are paid out of the United States Treasury, and in consequence each 
State is anxious to send to Congress as many Representatives as it 
can get. 

In examining the question of the compensation of members 
the first thing to make clear is that Senators and Repre- 
sentatives are paid precisely the same 
Senators and salary. The office of Senator, it is true, 

Representatives is more important than that of Repre- 

Oet Same Salary. sentative, but this superior consequence 
does not arise from any difference in 
salary. The greater importance of the Senatorial office is 
due, among other things, to the fact that the Senator holds 
his position for a period of six years and that he is com- 
monly in charge of the party organization in his own State. 
This places many important appointments at his disposal, 
and often puts Representatives themselves under obligations 
to him. Nevertheless, the salary of the Representative and 
the Senator is the same. By a law recently enacted the com- 
pensation of each has been fixed at $7,500 a year. For a long 

period, however, it was only $5,000. In addition 
Mileage, to the salary an allowance for traveling expenses 
Etc. of twenty cents a mile is paid to members in 

going to and returning from the annual and the 
extra session of Congress. To members who represent States 
at a great distance from the city of Washington this item of 
mileage makes a material addition to salaries. Congress- 



58 FRAME OF GOVERNMENT 

men have also an allowance for clerks. Members of both 
Houses possess the franking privilege and receive an allow- 
ance for stationery. 

The exemption from arrest, except for treason, felony and 
breach of the peace, seems to be a privilege essential to the 
independence as well as the greatest useful- 
Freedom, ness of members of Congress. At times 

From Arrest. indeed it may appear to injure individuals 
by preventing them from enforcing their 
rights against Eepresentatives or Senators, but in the long 
run these inconveniences will be found to be greatly out- 
weighed by the advantages of the privilege. 

If for speeches delivered in Congress members were sub- 
ject to suits for slander or for libel, the public business 
would be greatly embarrassed by the 
Not Liable for legal proceedings certain to be instituted 
Slander or Libel, against Representatives and Senators. 
Their constitutional privilege tends 
greatly to confirm the independence of members and insures 
perfect freedom of debate. Judge Cooley, Constitutional 
Law, p. 50, holds that the privilege is confined strictly to 
what is said "in the House or in committee in discharge of 
legislative duty." 

While members enjoy these privileges there are also in- 
cident to their offices a few limitations of which the purpose 
is apparent. "No Senator or Representative 
Restraints, shall, during the time for which he was elected, 
be appointed to any civil office under the 
authority of the United States, which shall have been created, 
or the emoluments whereof shall have been increased during 
such lime; and no person holding any office under the United 
States, shall be a member of either House during his con- 
tinuance in office." 

One evident result of the first part of this provision is to 



RESTRAINTS ON CONGRESSMEN 59 

discourage somewhat the creation of unnecessary offices. 
The expectation on the part of Congressmen of filling de- 
sirable places would tend naturally to increase their Dumber. 
From the second part of the provision it is clear that a 
Representative or a Senator who accepts a Federal office 
thereby forfeits his seat. Of course he can be again elected 
but he cannot take his seat until he has first resigned the 
Federal office. 



CHAPTER VII 

THE FRAME OP GOVERNMENT 

(Continued) 

"All bills for raising revenue shall originate in the House 
of Representatives; but the Senate may propose or concur 
with amendments as on other bills."* As is well known 
this provision is borrowed from a principle of the British 
Constitution, Avhich requires all money bills to originate in 
the House of Commons. 

This power, conferred exclusively upon the House of 
Representatives, is not after all a very important one, be- 
cause by a succession of amendments the Senate can so 
modify a revenue bill as completely to change it. In prac- 
tice the regulation is always respected. 

At a critical period of American history, Henry Clay, perhaps 
the greatest of our parliamentary leaders, introduced into the Senate 
a tariff measure. This was the famous bill for composing the 
difficulties growing out of Nullification. In an advanced stage of 
its discussion the constitutional point was raised, and for the 
moment the measure was dropped. A bill almost identical in sub- 
stance which was pending in the House was promptly passed by 
that chamber. This measure was then passed by the Senate. 

THE POWERS OF CONGRESS are of two kinds, viz. : 
(a) those enumerated in the Constitution, and familiarly 
known as Express Powers, and (6) those derived from them 
and known as Implied Powers. As to the extent of the 
latter the American people have always been divided in 
opinion. In the specific mention of powers in the Consti- 
tution it is declared that 

"The Congress shall have Power to lay and collect Taxes, Duties, 
Imposts and Excises, to pay the Debts and provide for the common 



* Art. I, Sec. 7, cl. 1, of the Constitution of the United States. 
60 



VARIETIES OF TAXES 61 

Defence and general Welfare of the United States; but all Duties, 
Imposts and Excises shall be uniform throughout the United States." 

Of the powers which we are about to consider that of 
taxation is the most important. Indeed it is indispensable 
to the existence of government. It was the lack of this 
power that wrecked the government under the Articles of 
Confederation. In this provision, as in those which follow, 
the powers of Congress are not defined but merely mentioned 
or enumerated. 

As it is usually defined, a tax is a portion of private 
property taken for public use. The term includes all those 
regular charges made by government for the 
Varieties purpose of raising revenue. They are assessed 
of Taxes, upon persons, property, occupations, privileges, 
etc. In this sense duties, imposts and excises 
are taxes. The first two, duties and imposts, are almost 
equivalent terms, and they are applied to those government 
charges laid upon merchandise exported from or imported 
into a country. In the United States no duty can be levied 
on exported commodities. A familiar illustration of excise 
is the tax on manufactured tobacco, or that on distilled 
liquor. From this provision it is clear that the same rate 
is to be levied upon the same article everywhere. Thus in 
the District of Columbia, the territories and the states, 
commodities are subject to the same rate of taxation. 

This important power is conferred upon Congress in order 
to pay the debts and provide for the common defence and 
the general welfare. 

There is, it is true, another interpretation of its meaning. By- 
some it is held that there is conferred upon Congress a general 
power of taxation and also a general authority to provide for the 
public welfare. If Congress is vested with a general capacity to 
lay taxes in order to provide for the general welfare, its powers 
are dangerously extensive. The former construction has been 



62 FRAME OF GOVERNMENT 

almost universally adopted, and if we consider the suspicion with 
which at the outset the new government was regarded, the inter- 
pretation does not seem unreasonable. 

Congress is authorized "to borrow Money on the Credit of 
the United States." A similar provision existed in the 
Articles of Confederation, and the power was frequently 
employed by the Continental Congress. Under the Consti- 
tution it has often been exercised, and because of this 
authority Congress can borrow money in all the ways known 
to the business world. The usual method, however, is to 
offer for sale bonds of the United States Government. The 
purchaser of one of these bonds receives an instrument which 
is an evidence of Government indebtedness to him. On this 
instrument, or bond, he draws interest. With it he can 
engage in every sort of mercantile transaction that would 
be open to him if he had kept his money. Moreover, this 
bond is not subject to State taxation, for if it were, people 
generally would not buy Government bonds, and the power 
of Congress to borrow money would be greatly impaired, 
whereas by the Constitution it appears to be subject to no 
restraint. Indeed, it seems to be as wide as the needs of 
the Government. 

When in 1791 it was proposed to establish the first United States 
Bank the project was opposed on the ground that it was uncon- 
stitutional. Though not the chief argument of the friends of the 
Bank, many of them appealed to the borrowing power of Congress 
as a justification for its establishment. The Bank, they contended, 
would greatly assist the Government in managing its finances. 
Then, too, the Government could borrow from the Bank. Again, 
in 1816, when the second United States Bank was chartered, the 
same objections were made and the same arguments urged. The 
power conferred by this clause is also held to be the legal basis of 
our present system of national banks. 

Another method of borrowing money is to issue for either a short 
period or for an indefinite one notes which may or may not bear 
interest. On June 30, 1812, shortly after war was declared against 



COMMERCE 63 

England, Congress passed an act authorizing the issue of Treasury 
notes. These were to be in denominations of not less than $100; 
they were to be retired in one year, and were made receivable for 
all payments due the United Stats. The notes of small denomina- 
tions bore interest at the rate of 5 2/5 per cent. During the course 
of that war Treasury notes were issued to the amount of more 
than $36,000,000. 

Another important power conferred upon Congress is thai 
relating to commerce. The preceding pages, Chapter III. 

have suggested incident ally Hie commercial re- 
Power over lations of New York and Connecticut, of New 
Commerce. York and New Jersey and of .Maryland and 

Virginia in the period immediately following 
the acknowledgment of American independence. This lack 
of inter-state comity was one of the chief influences which 
brought together the Constitutional Convention. To the 
Annapolis convention of* list; the delegates or commis- 
sioners from New Jersey were sent with authority "to con- 
sider how far a uniform system in their commercial regu- 
lations and other important matters might be necessary to 
the common interest and permanent harmony of the several 
states, and to report such an act on the subject, as when 
ratified by them would enable the United States, in Con- 
gress assembled, effectually to provide for the exigencies of 
the Union."* 

From this testimony it is clear that at least one of the 
states regarded the regulation of commerce as a matter of 
primary importance. While this sentiment 
Regulation of appears to point to only inter-state commerce. 
Commerce. the same commonwealth when ratifying the 
Articles of Confederation had insisted that 
the exclusive power of regulating trade with foreign nations 
ought clearly to be vested in Congress; that is, in the Con- 



* Elliott's Debates, I, p. 117. 



64 FRAME OF GOVERNMENT 

gress under the Articles of Confederation. These as well 
as other facts of our political history should make it plain 
to the student that the principles of the Constitution were 
not discovered in the Philadelphia Convention. At present 
we are not so much concerned with the history as the mean- 
ing of this important grant of power. 

In the language of the Constitution, Congress is authorized 
u to regulate Commerce with foreign nations and among the 
several states and with the Indian tribes." On this subject 
a multitude of decisions by the United States Supreme Court 
has made clear several important points: 

(a) The term commerce includes not only the notion of 
traffic, that is, interchange of merchandise, but (o) also 
that of navigation, or the conveyance of 
Meaning of goods from one country to another or from 
"Commerce." one state to another. Commerce, then, in- 
cludes the twofold notion of the exchange of 
goods and of their transportation. These are the elements 
of commerce which Congress is empowered to regulate. 
Hence any rule governing the interchange of merchandise 
would be a regulation of commerce. For instance a law 
prescribing rules concerning the safety or the number of a 
ship's crew would be a regulation of commerce. 

As already hinted the power to regulate commerce was 
not possessed by the United States Government under the 

Articles of Confederation, nor has it under the 
Power not Constitution been wholly conferred upon Con- 
Aosolute. gress, for the states have retained certain 

powers over the subject. The nature of this 
state regulation of commerce will presently be noticed. From 
these observations it follows that in the examination of this 
subject it is of primary importance to remember that Con- 
gress does not possess absolute power to regulate commerce 



gibbons versus OGDBN 65 

but only "to regulate commerce with foreign nations and 
among the several states and with the Indian tribes." 

If commerce with foreign countries was to be regulated 
with any degree of uniformity, it is clear that such regu- 
lation could only be effected by the General Government. 
How this intercourse was managed by the several states 
under the Confederation is well known. For reasons already 
mentioned the Confederation proved unequal to the estab 
lishment of any harmonious system of inter-state commerce. 
The Indian tribes being recognized to some extent as self- 
governing bodies the regulation of commerce with them 
should, of course, be under the control of Gongr< 

As early as 1718-19, Deputy Governor Keith, of Pennsylvania, sug- 
gested in a communication to the Lords of Trade and Plantations 
that the regulation of traffic with the Indian tribes be vested ex- 
clusively in Great Britain. He likewise pointed out the danger of 
leaving so important a matter to the wisdom of the various colonies. 

Early in the nineteenth century the legislature of New York 
conferred upon Robert R. Livingston and Robert Fulton the ex- 
clusive right to navigate by steam the waters of that state. Not- 
withstanding this law, Gibbons ran a steamboat between New York 
City and Elizabethport, New Jersey. Under acts of Congress this 
boat had been duly licensed and enrolled for the coasting trade. 
Ogden, who had succeeded to the rights of Livingston and Fulton, 
instituted in the courts of New York a suit to restrain Gibbons 
from running his vessel in the jurisdiction of that state. The state 
courts decided in his favor. Thereupon Gibbons appealed to the 
Supreme Court of the United States. In that tribunal the case was 
argued with great ability by some of the leading lawyers of that 
time, among them Thomas Addis Emmett and Daniel Webster. 
The opinion of the United States Supreme Court, which decided 
against the claims of Ogden, was prepared by Chief Justice Marshall, 
and is undoubtedly one of his masterpieces. It will be found, pp. 
1-240, Vol. IX, of Wheaton's Reports, and is a very clear interpre- 
tation of the extent of the power conferred upon Congress to regu- 
late commerce among the several states. According to this cele- 
brated decision trading intercourse "among the several states" is 
commerce which commences in one, terminates in another, and may 



66 FRAME OF GOVERNMENT 

pass through a third. The word "among" is the important one. 
Concerning commerce, therefore, which originated in the interior of 
New Jersey and terminated in the interior of New York, Congress 
had the right of regulation. By the long embargo of Jefferson's 
administration and the restrictive measures of his successor the 
trade of New England nearly perished. The people of that section 
admitted the right of Congress to regulate but not on the pretence 
of regulating to destroy commerce. 

Under this grant Congress has power to pass laws desig- 
nating the ports at which ships may enter, discharge, load, 
be cleared, etc. It can legislate concerning im- 
What provements of navigable rivers and harbors. Be- 

Congress sides this authority to pass laws respecting the 
Can Do. places where trading is carried on Congress is 
empowered to legislate relative to the means and 
instruments by which that trade is conducted. It can also 
pass laws concerning the subject-matter of commerce. At 
different times laws have been passed controlling the im- 
portation of adulterated drugs and forbidding the importa- 
tion of immoral books and pictures. 

In establishing the Federal Government the states did not 
surrender all their power to make laws respecting commerce. 

The states may pass laws concerning harbor 
What States regulations or laws regarding the employ- 
Can Do. ment of pilots. Unless they are in conflict 

with acts of Congress on the same subjects 
such enactments are valid, though it is clear that such rules 
or regulations may affect foreign or inter-state commerce. 
A State may, for instance, require railway engineers to pro- 
cure a license and this even if they are employed by rail- 
roads engaged in inter-state commerce. It may be observed 
generally that the United States Supreme Court has been 
very reluctant to interfere with the police power of the 
several states. This leaves to the members of the Union a 
wide field for legislation concerning the health and the 
morals of their people. 



CHAPTER VIII 

THE FRAME OF GOVERNMENT 

{Continued) 

Congress is empowered k 'To establish a uniform rule of 
Naturalization, and uniform Laws on the subject of Bank 
ruptcies throughout the United States."* Naturalization is 
the act of conferring upon an alien the rights, privileges and 
immunities of citizenship. In another connection, pages 
11-19, chapter I, some of these rights and privileges have 
been mentioned. Foreigners may acquire membership in our 
body politic in two ways, viz. by (a) annexation and by 
(&) naturalization. 

Article Til of the treaty for the cession of Louisiana reads : 
"The inhabitants of the ceded territory shall be incorporated 
in the Union of the United States and admitted as soon as 
possible according to the principles of the Federal Tonsti- 
tution to the enjoyment of all the rights, advantages and 
immunities of citizens of the United States ; and in the mean- 
time they shall be maintained and protected in the free en- 
joyment of their liberty, property and the religion which 
they profess. "f For the present we are concerned with only 
the first part of the article quoted. Thus by the method of 
annexation were the inhabitants of the Louisiana territory 
admitted in 1803 to membership in this Union. 
Citizens by In the treaty of 1819, by which Spain ceded 
Annexation, both east and west Florida to the United 
States, there is a similar provision. By an- 
nexation the citizens of the republic of Texas became citizens 
of the United States. Articles of the treaty with Mexico 
made provisions substantially the same as the foregoing for 



* Art. I, Sec. 8, cl. 4, Constitution of the United States. 

t Treaties with Foreign Countries, in Force July 7, 1898, p. 176, 

67 



68 FRAME OF GOVERNMENT 

those Mexican citizens who continued to reside in California, 
New Mexico, and in the vast territory ac- 
Some Indians quired in 1848. Thus the Zuiii and other 
A re Citizens. Indian tribes became, and their descendants 
continue to be citizens of the United states. 
With these exceptions, Indians, notwithstanding the place 
of their birth, are not citizens of the United States, and they 
cannot be made citizens by naturalization. On the division 
of land in an Indian reservation, it is true, those Indians 
who accept their shares under such an apportionment may 
become citizens if Congress so provides. Such legislation 
has been enacted by Congress. 

After some delay the status of Porto Kicans and Filipinos 
was fixed by Congress. Any citizen of either possession may 
become an American citizen by declaring his intention two 
years before admission to citizenship. He need renounce no 
allegiance or complete any term of residence. 

Those aliens who do not acquire the status of citizenship 
by the annexation of their territory may acquire it by the 
process of naturalization. As the term 
Naturalization, suggests, this process makes a person 
"natural ;" that is, when completed, it 
leaves him as if he were a citizen by nature. The power to 
naturalize aliens is not shared by the several states but is 
vested exclusively in Congress. 

It should first be observed that Americans do not regard 
naturalization as a right to which all races are entitled. 
Until 1870 no one but a "free white person" could 
Negroes acquire citizenship. In the United States Senate 
Become an attempt to strike out the word "white" was 
Citizens, defeated by a single vote. It was then enacted 
that only "free white persons" and "aliens of 
African nativity and persons of African descent" could be 



INCAPABLE OF NATURALIZATION bU 

admitted to citizenship. Alien Mongolians, Japanese, especi- 
ally Chinese, and Malays can not be natu- 
Mongolians ralized in the United States. Our courts 

Denied deny them naturalization on the ground of 

Naturalization, color. Nevertheless, though the parents 
can not by the process of naturalization 
their children by the fact of birth can become citizens of 
the United States. 

Members of those races entitled by American opinion to 
the privilege of naturalization can become citizens of the 
United States after a residence of five 
Process of years. The person who applies for natu- 

Naturalization. ralization must first go into a court and 
declare his intention to become a citizen 
of the United States and renounce his allegiance to any 
foreign power. This he must do at least two years before 
he attempts to complete his naturalization. This prelimi- 
nary step is what is popularly known as taking out the 
"first papers." Though this step may be taken at any time 
after the arrival of the applicant in this country, it is cus- 
tomary to wait for three years. This period will enable the 
candidate for citizenship to become somewhat familiar with 
American institutions. On appearing in court, two years 
later, to complete the process of naturalization, he must be 
accompanied by two witnesses, who are required to testify 
that he has resided in the United States for five years, that 
he is a person of good moral character and is attached to 
the principles of the Constitution. He is also required to 
renounce under oath his allegiance to the country from 
which he came. No matter how long a foreigner resides in 
the United States before declaring his intention, he cannot 
be naturalized until the expiration of two years from the 
time of making that declaration. In all cases the first papers 



70 FRAME OF GOVERNMENT 

must be taken out two years before a certificate of full 
citizenship is granted. 

The wife and the minor children of a man who has been 
naturalized become citizens without taking out separate 
papers. An alien woman who applies for citizenship must 
possess the same qualifications as are required in the case 
of a man. Though she may by marrying a citizen acquire 
the same status as if she had been naturalized. Some of 
the privileges of American citizenship have already been 
mentioned. Its obligations and duties will form the subject 
of a later chapter. 

Though Congress prescribes the rules governing natural- 
ization, the applicant for citizenship can "declare his in- 
tention," and, two years later, complete the process in any 
court of record, State or Federal. Except for a very brief 
interval, 1798-1802, the period of residence has always been, 
and it is now, five years. The sentiment which enacted the 
Alien and Sedition Laws amended the act of 1795 by ex- 
tending the period of residence to fourteen years. 

A bankruptcy law provides for distributing the property 
of an insolvent debtor among his creditors. Of course, this 
distribution is in proportion to their proved claims. A 
bankruptcy law may also discharge the failing debtor from 
further liability to his creditors. In such a law, therefore, 
there may be two elements, one which provides for distribu- 
tion and one which exempts from further liability. Congress 
is empowered to pass laws including one or both of these 
features. 

A law on the subject of bankruptcies was passed by Congress in 
1800, and continued in force for three years; that passed in 1841 
was of even shorter duration. The act of 1867 was repealed in 
1878, and the present law was enacted in 1898. From this summary 
it is clear that there has been during the greater part of the time 
since 1789 no uniform law on the subject of bankruptcies, 



COINAGE AND VALUE 71 

When Congress abstains from passing a general law on 
iliis subject, the various state Legislatures are free to act, 
and, indeed, they have frequently so acted. When, however, 
Congress chooses to pass a uniform law, all stale regulations 
are suspended. 

"The Congress shall have Power ... to coin Money, 
regulate the Value thereof, and of foreign Coin, and lix the 
Standard of Weights and Measures.''* In the 
What act of coinage several processes are involved; 

Coinage is. the metal intended to be used as money is ex- 
amined chemically so that its ingredients and 
their proportions can be ascertained; the metal is then sub- 
divided and stamped. The coining of a metal then, is a 
certification of weight and fineness, but not necessarily of 
value. By value we now understand purchasing power. The 
same, coin may exchange at one lime for more goods than 
it will at another. In this sense Congress cannot regulate 
the value of even its own coins, for value is 
Regulation not determined solely by legislative enactment. 
of Value. But all coins, whether domestic or foreign, in 

circulation in the United States, can be 
appraised by Congress, in (he sense that it can determine 
the valuation of them in its own receipts and payments as 
well as between individuals. 

Before 1860 many gold coins and one hundred and seventy- 
four varieties of silver coins were in circulation in the United 
States. By successive acts of Congress, beginning in 1793, 
certain named gold and silver coins, if of full weight, have 
been made legal tender in the United States. All foreign 
coins in circulation, however, have not been made legal 
tender. 



* Art I, Sec. 8, cl. 5, Constitution of the United States. 



72 FRAME OF GOVERNMENT 

By legal tender is understood coin or other money that 
may legally be offered in payment of a debt. The debtor 
may deposit in court that which the law declares 
Legal a legal tender, and can then obtain his discharge. 
Tender. In colonial times many different commodities were 
legal tender, e. g., tobacco, peas, wheat, Indian 
corn and oats. Indeed, at the present time there are varie- 
ties of legal tender. Gold coins are legal tender without 
limit; also silver dollars, and for certain purposes Treasury 
notes under the act of 1890. Except for paying interest on 
the public debt, United States notes (greenbacks) are legal 
tender. National Bank notes are legal tender for certain 
purposes. Silver coins smaller than one dollar are legal 
tender to the amount of ten dollars in one payment. Coins 
of nickel and copper are legal tender to the amount of 
twenty-five cents in one payment. 

The Constitution further provides that no State shall 
"coin money," or "make anything but gold and silver coin a 
tender in payment of debts." From these pro- 
Power visions it is clear that,, as in the case of natu- 
Exclusive. ralization, the whole subject of coining money 
and regulating its value is vested exclusively 
in Congress. If there existed any lack of uniformity in the 
currency of the United States, commerce would be greatly 
embarrassed. For other reasons, therefore, besides those 
mentioned it is necessary that this power be vested in Con- 
gress. 

In the preceding remarks on the power Congress to coin 
money it has been assumed that the provision has reference 
to only the assaying and stamping of the precious metals, 
that is, to the coinage of gold and silver. By judicial opinion 
it has been held that the phrase "coin money and regulate 
the value thereof" is equivalent to making money or supply- 
ing a currency. Jefferson, indeed, alluded to the use of 



STATUS OF METRIC SYSTEM 73 

Treasury certificates as "coining and striking money," and 
Franklin appears to have understood it in a sense even wider. 

Immediately following the express power to coin money 
is one which confers upon Congress the authority "to pro- 
vide for the punishment of counterfeiting the 
A Concurrent securities and current coin of the United 
Power. States." This clause appears to require no 

further commentary than to remark that for 
the offences mentioned the states also may inflict punish 
ment ; in a word, the power is concurrent. 

In 1866 Congress passed a law authorizing the use of the 
Metric system of Weights and Measures. Previous attempts 
had been made to secure its adoption, but 
Metric System though recommended by a President and by 
Legalized. Congress the business men of the country 

have continued to use the familiar British 
system. From colonial times this was everywhere in use, 
and it was natural for Congress to adopt it. In consequence 
of the failure of Congress to pass a uniform law on the 
subject each State continues to make its own regulations. 
In this case Congress has not exercised the authority con- 
ferred upon it by the Constitution. The great number of 
existing state laws would be a nullity if Congress chose to 
fix for the whole country "the standard of Weights and 
Measures." 

In language comprehensive though somewhat vague, Con- 
gress is empowered "To establish Post Offices and Post 
Roads."* In his Principles of Constitutional 
Post Office Law, p. 84 (ed. 1880) Cooley says that "What- 
Department. ever place is officially kept as a place of de- 
posit of mailable matter is a post office, 
though it be merely a desk or a trunk or a box carried about 



* Art. I, Sec. 8, cl. 7, Constitution of the United States. 



74 FRAME OP GOVERN MENT 

a house or from one building to another." Because of this 
grant of power Cougress has created and, through the Post 
Office Department, regulates the entire postal system of the 
country. This Department superintends the transportation 
of mail; selects the places where it shall be received and 
delivered, and designates the routes over which it shall be 
carried. By reason of this authority Congress has in many 
places erected and hired buildings for the purpose of re- 
ceiving and delivering mail. 

In a few instances Congress has constructed roads for the purpose 
of transporting mails, but it has long been held that the power to 
establish post-roads confers no more than the authority to desig- 
nate over what existing routes the mails shall be carried. Some 
hold that it is only a military necessity that would justify the 
Federal construction of roads. It is, however, in virtue of this 
obscure grant that Congress gave aid in the construction of the 
Pacific Railway. This action might, it is true, be referred to the 
general welfare clause. 

By national laws a citizen can receive protection for his 
intellectual property. The Constitution, Art. I, sec. 8, cl. 8, 
vests in Congress the power to secure for 
Copyrights limited Times to Authors and Inventors the 
and Patents, exclusive Bight to their respective Writings 
and Discoveries." Because of this authority 
Congress has created the patent and copyright system of the 
United States. On these subjects laws were passed as early 
as 1790. The term patent was then used to describe an in- 
vention or discovery ; copyright signified the exclusive right 
of an author to publish his writings. The cotton-gin, of 
Whitney, and the steamboat, of Fulton, were among the 
early patents that were issued. 



PATENTS AND COPYRIGHTS 75 

According to the regulations prescribed by Congress the 
discoverer of a useful invention or process applies to the 
Patent Office, a bureau of the Interior Depart- 
Patent. nient, for a patent. Examiners of that office in- 
vestigate his claim, and if they are satisfied thai 
the invention is new and useful, letters patent are granted. 
These give to the inventor the exclusive right to manufac- 
ture, use or transfer to others his discovery or invent inn. 
The patent received from the General Government does not, 
however, enable the patentee to disregard the laws of the 
several States. For instance the inventor of a dangerous 
toy pistol might by State regulations be prevented from 
manufacturing or selling it within the limits of a particular 
commonwealth. As a general principle the Federal Govern- 
ment does not attempt to interfere with the police powers 
of the States. 

The term of a patent is seventeen years, and the fee for 
procuring it thirty-live dollars. In the year 1900 alone 
28,000 patents were granted and 21,000 expired. Because 
of the vast number of claims pending before the Patent 
Office their merits may not be, and frequently they are Dot 
rigorously investigated. That is, the examinations may not 
be sufficiently exhaustive. This may render it necessary for 
the inventor subsequently to have his rights determined in 
court. So completely do the laws of Congress cover the 
field of patents and copyrights that the Slaves have not 
entered it. 

Copyright is usually defined as the exclusive right secured 

by law to authors and artists to publish and dispose of their 

works for a limited time. In the United States 

Copyright, the term of a copyright is twenty-eight years 

with the privilege of renewal for fourteen years 

more. Copyrights include books, maps, and musical compo- 



76 FRAME OF GOVERNMENT 

sitions; also works of art, such as engravings, photographs, 
etc. 

In order to obtain a copyright the law requires the au- 
thor, or his publisher, to send, with an application in proper 
from, to the Kegister of Copyrights two copies of the best 
edition of the book. A fee of one dollar must accompany 
each application. Two copies of the book must be sent, 
promptly after publication, to the Librarian of Congress. In 
addition the author must announce, by printing on the title- 
page, or the page following, of every copy the fact and date 
of the copyright claimed. 



CHAPTER IX 

THE FRAME OF GOVERNMENT 

(Continued) 

By the Constitution, cl. 9, sec. 8, Congress is expressly 
empowered "To const i lute Tribunals inferior to the Supreme 
Court." Though this authority has been freely exercised, 
an examination of the subject belongs to Article III, which 
sketches in outline the constitution of the Judicial Depart- 
ment. The succeeding clause confers upon Congress the 
power "To define and punish Piracies and Felonies com 
mitted on the high seas, and Offences against the law of 
Nations." 

By piracy is generally understood robbery committed bj 
force of arms at sea. Pirates are outside of international 
law; are regarded as public enemies, and are 
Piracy amenable to the tribunals of their captors. A 
Defined, pirate may be justly seized by a vessel of any 
nation, and any state may make war on a pirati- 
cal people even if it has never been injured by them. Except 
in the waters of China, Morocco and a few other backward 
countries pirates have disappeared. This result is due 
chiefly to the fact that powerful ships of war are constantly 
traversing the seas. Were this for any reason to cease, 
piracy would, no doubt, revive. 

The privateer is to be distinguished from the pirate. The 
former carries with him a commission from his government 
to destroy the property of an enemy with 
A Privateer. which his country is at war. If he is cap- 
tured, he is entitled to be treated as a 
prisoner of war. The pirate who is overpowered and taken 
is liable to be hanged. 



78 FRAME OP GOVERNMENT 

In the United States the term felony is used to describe 
one of the offences of the highest class and is usually punish- 
able with death or confinement in a State 
Felony prison. If such an offence, for instance a 

Explained, murder, be committed on an American vessel 
in distant seas, Congress determines the tribu- 
nal in which the crime shall be tried. It is likewise author- 
ized to provide for the punishment of piracies as well as 
offences against the law of nations. For the purpose of 
this explanation the law of nations may 
The Law of be defined as the body of rules which civilized 
Nations. states acknowledge as binding in their relations 
to each other and to each other's subjects. 

By writers on international law it is generally admitted that 
states have some sort of jurisdiction over a belt of sea along their 
coasts. This is what is commonly described as coast-sea, and in 
modern times was first limited to a cannon-shot, and later to a 
marine league. It is an interesting matter and by no means easy 
to determine what right a state possesses over this belt of sea. 
That it enjoys some rights over it is beyond question. A state can, 
for instance, exercise over this strip of sea along its coast such 
powers as may be necessary to protect its revenue system, and it 
can protect its citizens or subjects who may within that limit be 
following a lawful occupation as, for example, that of fishing. The 
state cannot, however, exercise over this part of the sea the same 
rights which it does over the land. It would certainly be no offence 

for a foreign vessel plying between different 
The "High Seas" ports to sail through any part of this three mile 

belt, though foreign warships could scarcely re- 
gard it as a right to engage each other in battle within that limit. 
The phrase "high-seas," as used in the Constitution, signifies tide 
waters below low-water mark. 



WAR POWERS OF CONGRESS 79 

By the succeeding clause Congress is authorized "To de- 
clare War, grant Letters of Marque and Reprisal, and make 
Eules concerning Captures on Land and 
Congress Can Water."* As other provisions of the Consti- 
DeclareWar. tution confer upon Congress the power "to 
raise and support armies" and "to provide 
and maintain" a navy, it seems appropriate to vest in thai 
body the important power to declare war. The withholding 
of this power from the President was originally regarded 
as a peculiar merit in our fundamental law, bn1 it lias long 
been recognized that this is no more than a paper advantage, 
for it is well within the power of the Executive to do acts 
which may provoke a war. Thai is, though the President 
cannot formally declare war against a foreign state, lie may 
in the exercise of his discretion do an act which will lead 
that state to declare war against us. 

Though the power to raise and support armies is rested 
exclusively in Congress, that body cannot maintain a perma- 
nent force, because Congress can make do ap- 
Letters of propriation of money for this purpose for a 
Marque and longer term than two years. By the phrase 
Reprisal. "letters of marque and reprisal" is meant the 

granting of commissions to private persons 
authorizing them to take, wherever found, persons or prop- 
erty belonging to a foreign state. A preceding paragraph 
has pointed out the distinction between a pirate and a 
privateer. The phrase "captures on land and sea" includes 
persons and things taken in war, and concerning both Con- 
gress is empowered to make rules or regulations. 

More important than any of these provisions and because 
of its history more interesting is that which empowers 
Congress "To provide for calling forth the Militia to execute 



Art I, Sec. 8, cl. 11, Constitution of the United States. 



80 FRAME OP GOVERNMENT 

the Laws of the Union, suppress Insurrections and repel 
Invasions." 

Under the Articles of Confederation there had grown up 
a habit of disobeying the measures of the Continental Con- 
gress, and under the Constitution the tendency might, not 
unnaturally, be expected to continue. Indeed, only a few 
years passed before there arose the grave question whether 
citizens of one State would at the call of the Federal authori- 
ties enter another commonwealth and assist the new Govern- 
ment to enforce its measures. 

In the last decade of the XVIII century there was probably more 
whiskey manufactured and consumed in the four western counties 
of Pennsylvania than in any region of similar extent and equal 
population in the United States. Along the banks of the Monon- 
gahela and the Ohio a gallon of whiskey was everywhere regarded 
as the equivalent of a shilling. In fact, it had become the principal 
medium of exchange, or the money of that community. When an 
excise law of Congress proposed to lay upon every gallon of whiskey 
a tax of seven cents, those interested in its manufacture became 
exceedingly indignant. The inspectors, whose duty it was to mark 
the barrels, the collectors of revenue, and the officers who attempted 
to serve processes in that region were generally treated with great 
severity and in some cases even with barbarity by the more turbulent 
citizens, who continued from 1791 to 1794 to increase both in num- 
bers and ferocity. 

In these circumstances President Washington called for troops, 
and from New Jersey, Maryland, Virginia and Pennsylvania a large 
body of militia responded. Except the Maryland force, which was 
led by a Congressman, the various contingents were commanded by 
their governors. The army was so large that no resistance was 
offered by the "Whiskey Boys" and their friends. In a little while 
the greater part of the Federal troops returned to their homes. 
But they left behind them a small army of 2,500 men under General 
Morgan, the distinguished officer of the Revolution. Its presence 
soon restored order in the troubled region. 



AUTHORITY OVER DISTRICT OF COLUMBIA 81 

The Whiskey Insurrection proved that the new Govern- 
ment would enforce its laws, and in 1861 the incident fur- 
nished President Lincoln with a precedent 
Whiskey for calling forth the militia of the several 

Insurrection. States to enforce the laws of the Union and 
suppress insurrection. 

During the Revolutionary War, while the Continental 
Congress was sitting in Philadelphia, a small party of 
boisterous or drunken soldiers, under a sergeant, inarched 
from Lancaster to the capital and intimidated Congress. 
That body appealed for protection to the authorities of 
Pennsylvania; nevertheless, nothing was done to provide for 
its safety. This experience of the national legislature may not 
be unconnected with the clause in the Constitution which has 
given Congress the power to protect itself. By this provision 
Congress is authorized "to exercise exclusive Legislation in 
all cases whatsoever, over such Dis- 
Authority over trict (not exceeding ten Miles 

District of Columbia, square) as may. by Cession of par- 
ticular States, and the Acceptance of 
Congress, become the Seat of the Government of the United 
States, etc."* 

This exclusive right to make laws for the District of Columbia 
accounts for the great number of petitions received by Congress 
from anti-slavery societies in the generation preceding the Civil 
War. If it could not put an end to the institution of slavery in 
the various states, it could at least abolish the system in the District 
of Columbia and in other districts over which it had exclusive 
legislative power. Congress, however, never acted upon these peti- 
tions, and in the District of Columbia negro slavery continued 
until the last years of the War. 

Finally Congress is given power "To make all Laws which 
shall be necessary and proper for carrying into Execution 



* Art. 1, Sec. 8, cl. 17, Constitution of the United States. 



82 FRAME OF GOVERNMENT 

the foregoing Powers, and all other Powers vested by this 
Constitution in the Government of the United States, or in 
any Department or Officer thereof."* 

By some of our ablest statesmen this clause was held to 
confer upon Congress no new grant of power, simply an 
authority which by implication it already possessed. Other 
statesmen, almost equally eminent, held a contrary opinion. 
We need now be in no uncertainty as to the meaning of this 
provision, for we have for our guidance a decision of the 
United States Supreme Court, written by Chief Justice Mar- 
shall himself, in an opinion rendered in the famous case of 
McCulloch vs. Maryland, U. S. Eeports, 4 Wheaton, 31C. 

This case grew out of an attempt by the authorities of Maryland 
to impose a tax upon a branch of the Second United States Bank, 
which had engaged in business in the City of Baltimore. We have 
already seen that Congress is empowered to borrow money on the 
credit of the United States, and that it can do this in all the ways 
known to the commercial world. In 1816 Congress chartered the 
above mentioned institution for a period of twenty years. It was 
believed that it would promote uniformity of the currency, and it 
was intended to facilitate the collection and disbursement of the 
United States revenue. In a word, it was a fiscal agent of the 
United States, and if a state could impose upon that institution a 
small tax, it had the right to levy a large one, but if it could tax 
the bank at all, it had it in its power completely to destroy it. 

The word "necessary," Marshall said, can exist in different 
degress; a thing can be necessary, it can be very necessary, 

or it can be indispensably necessary. 
The "Necessary and Now the Constitution does not say 
Proper" Clause. that Congress is empowered to pass 

all laws which may be indispensably 
necessary, or even all laws which may be very necessary, 
but merely that it can pass all laws which are necessary, that 
is, all laws which may be conducive to a particular object; 



Art. I, Sec. 8, cl. 18, Constitution of the United States. 



RESTRAINTS ON CONGRESS 83 

laws which may promote the purposes of Congress. Of the 
necessity and propriety of creating the Bank, therefore, 
Congress was the judge. The Bank, which had been estab- 
lished by the two political departments, that is, by the Con 
gress and the Executive, was declared by the Supreme Court 
to have been constitutional. 

We have now made a concise examination of the powers 
expressly conferred upon Congress, and incidentally, as in 
the preceding paragrajm, have noticed the implied powers. 
The power to borrow money is expressly stated in the Con- 
stitution, but it is not therein expressly stated that Congress 
has any authority to establish a bank. The creation of both 
the First and Second United States Banks, therefore, was 
by virtue of the implied powers of Congress. 

RESTRAINTS UPON CONGRESS. 

After enumerating the powers expressly conferred upon 

Congress the Constitution in the succeeding section men- 
tions the restraints upon its power. Clause 1 of that section 
reads as follows : 

"The Migration or Importation of such persons as any of the 
states now existing shall think proper to admit, shall not be pro- 
hibited by the Congress prior to the Year one thousand eight hun- 
dred and eight, but a Tax or Duty may be imposed on such Im- 
portation, not exceeding ten Dollars for each Person."* 

In the Convention which framed the Constitution there 
were many conflicting elements, among them a party in 

favor of abolishing slavery and also a 
Compromise on party in favor of continuing that institu- 
Slave Trade. tion indefinitely. Of course the opinions of 

both interests could not prevail, and it was 
possible to reach an agreement only by mutual concessions. 
Those opposed to the importation of slaves agreed to a con- 



* Art. I., Sec. 9, cl. 1. 



84 FRAME OF GOVERNMENT 

tinuance of the privilege for a period of twenty years, while 
those who desired to import negroes for an indefinite term 
consented to this limitation. This was one of the most 
famous of those compromises without which the Convention 
could have reached no agreement. 

In a former chapter we have seen negroes referred to as 
"three-fifths of all other persons"; in the present section 
they are described as "such persons as any of the States 
now existing shall think proper to admit." Notwithstand- 
ing these euphemistic expressions, it is well known that the 
phrases were intended to describe negro slaves. By the 

constitutional provision Congress 
Importation of Slaves could not prohibit the importation 
Prohibited After 1808. of African slaves before the year 

1808. This agreement was very 
carefully observed, for on January 1, of that year, by a law 
previously enacted, Congress prohibited the African slave 
trade. Prior to that date the only authority of Congress 
over the traffic was its ability to impose upon each slave 
imported a tax of ten dollars. So great, however, were the 
profits of the trade that so small a tax would not in the 
least discourage it and it became necessary for Congress 
altogether to prohibit it. 

"The privilege of the Writ of Habeas Corpus shall not be 
suspended, unless when in Cases of Kebellion or Invasion the 
public Safety may require it." Like many 
Writ of Habeas other provisions of the Constitution this 
Corpus. was borrowed from the fundamental law 

of Great Britain. In the experience of 
that country, subjects were often seized by the authority of 
the government, carried off and confined in dungeons, often 
loathsome and sometimes dangerous to health. No process 
by their friends could reach them. Indeed, the places of 
their imprisonment were often kept secret from those who 



THE MERRY MAN CASE 85 

were interested in their welfare. Even when laws were 
passed on this subject, they were often evaded. In 1679, 
however, the Habeas Corpus Act became a part 
Benefits of of the British constitution. Since that time an 
the Writ. Englishman has always been entitled to a hear- 
ing, at which the cause of his detention must be 
made known to him so that he can take measures for his 
defence. 

In examining this provision the student should first observe that 
it is, by its terms, a restraint upon some part of the Government, 
and that it occurs in the section which limits the powers of Con- 
gress. This would make it appear that when the privileges of 
the writ are suspended that suspension can be effected only by the 
authority of Congress. So great a constitutional lawyer as Presi- 
dent Lincoln, however, thought otherwise, and early in the Civil 
War authorized one of his army officers, in the case of John Merry- 
man, to suspend the privileges of the writ. 

Merryman was believed or was known to be engaged in the vicinity 
of Baltimore in recruiting for the Confederate military service. He 
was seized at his home by a Federal troop and carried off to Fort 
McHenry. Thereupon his friends applied for a writ of Habeas 
Corpus to Chief Justice Taney, who happened at that time to be 
holding in Baltimore a session of the United States Circuit Court. 
The application was granted but when representatives from the 
office of the United States marshal attempted to serve the writ 
upon the commander of the fort, they were not allowed to enter. 
In making return of the writ it was declared that they were pre- 
vented from serving it by the military power of the United States. 
On being informed of the fact Justice Taney wrote the commander 
inquiring by what authority he had suspended the writ. That 
officer replied that he had done so by direction of the President. 
The Chief Justice then carefully examined the matter and con- 
cluded that the President did not possess the power, and, of course, 
could not delegate to another an authority which he did not himself 
possess. We are not now concerned with the nature of the corre- 
spondence that ensued nor with the published opinions of lawyers, 
who took up the discussion in various parts of the country. Soon 
after the subject was taken up by Congress. That body conferred 



M> FRAME OF GOVERNMENT 

upon Mr. Lincoln the authority to suspend the writ when in his 
judgment the public safety appeared to require it. This delegation 
by Congress of the right to suspend the writ was equivalent to a 
declaration that the power is vested not in the Executive but in 
the Legislative branch of Government. The President, however, was 
not censured for having exercised the power. 



CHAPTER X 

THE FRAME OP GOVERNMENT 

The preceding chapter noticed t\\<> important restraints 
on Congressional action. The first proved interesting merely 

because it is an evidence that the institution of slavery was 
originally recognized by the Constitution. The second, thai 
relating to the suspension of the privilege of the writ of 
habeas corpus, is still in force. In this chapter there will 
be enumerated and explained still other restraints upon the 
power of Congress. Taking them in the order in which they 
are mentioned in section !> of Article I the next reads: 
"No Hill of Attainder of ex p08i facto 
Bill of Attainder Law shall he passed." By the first of 
Defined. these limitations is underst 1 legisla- 

tive trial ami punishment. In England 
a bill of attainder is an act of Parliament "declaring a per- 
son by name, or a class of persons by description, to be guilty 
of crime, and ordering him or them to be capitally pun- 
ished."* A statute which does not inflict 
Bill of Pains the death punishment is known as a Hill of 
and Penalties. Pains and Penalties. The terrible use which 
had been made of these laws in England 
explains the appearance in our Constitution of this prohibi- 
tion, and it applies to the several States as well as to 
Congress. 

Even very young students are aware that the ordinary 
function of Congress as well as of the State Legislatures is 
to make laws. Should either of them cease to legislate 
and assume the functions of a judicial body, that is, if 

* Constitutional Law, Pomeroy, 319; 6th ed. 

87 



88 FRAME OF GOVERNMENT 

they pronounced upon the guilt of a party, without ob- 
serving judicial forms, if they determined the sufficiency 
of the proofs and fixed the degree of punishment, they would 
be proceeding by the method of attainder. Stated in still 
another form, bills of attainder and bills of pains and penal- 
ties were convictions and sentences pronounced by the legis- 
lative instead of the judicial branch of the government. 
Speaking of such statutes, the authority just quoted says: 
"No trial is necessary; no legal evidence; no notice to the 
accused ; no examination of witnesses ; even no crime." 

Ordinarily laws go into operation at the date of their 
passage, or at some future time. If, however, a law affects 
actions that took place before the date of its passage, such 
a law is said to be retro-active. Ketro-active legislation gen- 
erally is unpopular, though if such legislation affect only 
civil actions, it is not prohibited by the Constitution. If 
retro-active laws affect crimes, they are what are technically 
known as ex post facto laws. These are prohibited. By an 
ex post facto law, then, is understood one 
Ex Post Facto which makes criminal an act that was not 
Law Defined. a crime when it was committed, or if crim- 
inal when committed, one which increases 
the punishment due to the offence or which makes conviction 
easier. To make this explanation somewhat clearer let it be 
supposed that A, an inhabitant of New York, committed a 
murder on February 1, 1909. On that date the law required 
the concurrence of twelve jurors in order to convict him. If 
the Legislature should pass a law on February 15, two weeks 
after the commission of the crime, making the concurrence 
of nine jurors sufficient to convict, such a law would be 
ex post facto, and therefore void in the case of A. It is plain 
that this would make conviction easier. If on February 1, 
1909, the law annexed to the crime of murder the penalty of 
life imprisonment, a later law imposing the penalty of death 



DIRECT TAXES o\) 

would be ex post -facto as far as it concerned A. In a word, 
any law changing the judicial procedure would be of the 
nature of an ex post facto law. 

"No Capitation or other direct Tax shall be laid, unless in 
proportion to the Census or Enumeration herein before 
directed to be taken." A capitation or poll tax 
A Direct is a fixed sum of money paid by or for each person 
Tax. without reference to his property or business." 

Taxes assessed upon land are known as direct 
taxes. The familiar poll tax is also of the same class. All 
other species are called indirect taxes. 

Congress can lav no tax or duty on articles exported from 
any State. If it could do so, it would be possible for a 
majority of the National Legislature, 
Congress Cannot supported by the President, seriously to 
Tax Exports. cripple or altogether to destiny impor- 

tant industries in some of the States. 
The power of taxing exports is, therefore, denied to Congress 
for prudential reasons, because when the Constitution was 
framed, the States feared to trust the new (iovernment with 
powers so extensive. 

By the next provision it is not within the power of Con- 
gress to favor a particular port of entry. Under the law all 
ports are to enjoy equal privileges. Before 
No the framing of the Constitution it was 

Discrimination, customary for Baltimore vessels to take on 
their cargoes; sail down the Chesapeake 
to Norfolk; enter at, and clear from that port, and after 
this considerable delay resume their voyages. The Maryland 
delegates in the Convention brought up this subject for con- 
sideration, and hence we find in the Constitution a provision 
that vessels bound to or from one State shall not "be obliged 
to enter, clear, or pay duties, in another." Since the adop- 
tion of the Constitution, then, Baltimore vessels, if their 



90 FRAME OF GOVERNMENT 

masters so desire, can sail directly to their destination. So 
also can vessels from any other port. 

The anti-aristocratic feeling of Americans of the Revolu- 
tionary era appears in the last of these limitations. "No 
Title of Nobility shall be granted by the 
Anti-Aristocratic United States." This, of course, is a 
Feeling. restraint upon Congress, the Executive 

and the Judiciary. Such is a brief 
explanation of the nature of the restraints upon Congress. 
Other restraints on the powers of that body will be found in 
the first ten amendments. 

Besides these express limitations, there are many that are 
implied. Congress can not, for example, exercise the powers 
conferred by the Constitution upon the Executive or upon 
the Judciary. Nor can it encroach upon that part of sov- 
ereignty which is left to the States. The next section of the 
Constitution, 10 of Article I, is concerned with restraints on 
the States. 

RESTRAINTS ON THE STATES. 

"No State shall enter into any Treaty, Alliance, or Confederation; 
grant Letters of Marque and Reprisal; coin Money, emit Bills of 
Credit; make any Thing but gold and silver Coin a Tender in Pay- 
ment of Debts; pass any Bill of Attainder; ex post facto law, or 
Law impairing the Obligation of Contracts, or grant any title of 
Nobility." 

It has just been observed that Congress can pass no bill 
of attainder or ex post facto law and that Congress, as well 

as the Executive and Judicial branches 
States Can Form of the Government, can grant no title of 
No Alliance. nobility. From the clause just quoted it 

is clear that the same limitations are 
placed upon the States. But there are many other restraints 
on State action. These will be brietlv noticed. k 'No State 



RESTRAINT ON STATES !»1 

shall enter into any treaty, alliance or confederation." This 
provision makes it plain thai no member of the Union can 
enter into these relations with a foreign power. Onr political 
history shows that lliis and another prohibition extended to 
alliances among the Slates themselves. Early in the year 
18G1 there was formed within the Union a very powerful 
league known as The Confederate States of America. l>i<l 
the States which formed this confederation disregard the 
constitutional prohibition? The first commonwealth i<» 
attempt to leave the Union was South Carolina. First, 
however, that Slate passed an ordinance of secession. This, h 
was claimed, took her ont of the Union, and the Constitution 
was therefore no longer binding upon her people. Pour 
other States followed the example of South Carolina, and in 
February, 18G1, their delegates met at Montgomery and 
organized the Confederacy. By forming no alliance until, as 
they supposed, they had first gone out of the Union, thej 
observed the forms of the law. Later, however, they were 
joined by six other commonwealths, but these were not all so 
careful, for some of them, like Tennessee, turned over their 
military power to the Southern Confederacy before they had 

even passed ordinances of secession. 
Coinage If the States were allowed to coin money. 

Forbidden, there would be no uniformity in the currency. 

and in consequence commerce would be greatly 
embarrassed. The States are likewise forbidden to emit 
bills of credit; that is, paper of any kind 
Bills of Credit intended to pass from hand to hand as a 
Forbidden. substitute for currency. "No State can 

make anything but gold and silver coin a 
tender in payment of debts/- The expression legal tender 
has alreadv been defined. 



92 FRAME OP GOVERNMENT 

The remaining provision is, perhaps, one of the most im- 
portant in the Constitution, and has been the subject of more 
judicial discussion than almost any other. 
Impairment An eminent authority, Von Hoist, Constitu- 
of Contracts, tional Law of the United States, p. 232, has 
said that to master this entire subject would 
be ''the task of a life-time, and the trouble taken would be ill 
repaid." No State shall pass any law "impairing the 
Obligation of Contracts." Art. I, Sec. 10, CI. 1. 

It is believed that this restraint upon the States was made a part 
of the Constitution in order to prevent the repudiation of debts and 
of private obligations. By judicial construction, however, it has been 
made much more comprehensive. Though this limitation seems to 
apply to only the States, it is not clear that Congress, if so disposed, 
could impair the obligation of contracts, for in a preceding chapter 
it was shown that Congress can exercise only those powers which 
are enumerated and those that may fairly be inferred from them. 
There is certainly granted to Congress no express power to pass a 
law impairing the obligation of contracts, nor does there occur to 
the writer any of the enumerated powers from which it may rea- 
sonably be inferred. Moreover, the impairment of contracts is gen- 
erally held to be opposed to sound principles of legislation. With 
respect to the Federal Government, however, the difficulty lies in 
this, that the United States can not be sued; therefore, if Congress 
should pass a law impairing the obligation of contracts, the citizen 
has no redress. 

A contract, as denned by Chief Justice Marshall, is "an 
agreement in which a party undertakes to do, or not to do, a 
particular thing." Contracts may be express or 
Contract implied. When the parties state definitely what 
Defined, is to be done the contract is said to be express; 
when, however, they do not formally set forth the 
thing to be done or not to be done but when the stipulations 
are left to be inferred from the conduct or the relation of 
the parties, the contract is said to be implied. Contracts 
are also either executory or executed. When the promise is 



DARTMOUTH COLLEGE CASE 93 

as yet imperformed, the contract is said to be executory, and 
when it has been performed it is said to be executed. 

''The obligation of a contract consists in its binding force 

on the party making it, which the law at the time recognizes, 

and for which it gives a remedy. . . . No 

Law Must promise or assurance can, therefore, constitute 

Sanction. a contract, unless the law lends its sanction, and 

this in some cases it withholds."* 

In popular though, perhaps, not in strict legal definition, any 
alteration of the substance of a contract or of the law governing 
it at the time it was entered into would be regarded as an impair- 
ment of the contract. On the other hand, an acceptance of this prin- 
ciple would seem to give to the Federal Government too great control 
over the policy of the various commonwealths. Those who advocate 
State's Rights would oppose this view. 

The foundation for most of the judicial decisions on this 
constitutional provision is the opinion of Chief Justice Mai 
shall in the case of The Trustees of Dartmouth College v. 
Woodward, 4th. Wheaton. Though they are very interest- 
ing, the facts cannot be related here, except in the merest 
outline. 

In 1769 King George III granted a charter to Dartmouth College 
in the colony of New Hampshire. Under this instrument it con- 
tinued to be governed by twelve trustees until 1816, when it was 
modified by acts of the State Legislature. This amendment, how- 
ever, the trustees refused to accept. Under the old charter Wood- 
ward had been secretary and treasurer, but in 1816 he was removed. 
In 1817 the new board of trustees re-appointed him to his former 
office. Thereupon the old trustees sued him for the charter and 
other chattels of the college. The case being decided against them in 
the courts of New Hampshire, they brought it to the United States 
Supreme Court. 



Cooley, Principles of Constitutional Law, p. 301; ed. 1880. 



!>4 FRAME OF GOVERNMENT 

Aii application had been made to the Crown for a charter 
to incorporate a religious and literary institution. The 
application stated that contributions would 
A Contract be made as soon as the corporation was 
Formed. created. The charter was granted, and on 

its faith considerable property was conveyed 
to the college. In this transaction, said the Court, there was 
to be found "every ingredient of a complete and legitimate 
contract." 

By the act of incorporation and the will of the founder 
the trustees were invested with certain rights, as, for 
instance, the right to appoint and remove 
Not a Legis- professors and other officers; also the right 
lative Act. to prescribe courses of instruction and to fill 

vacancies occurring in their number. In a 
word, certain rights were legally conferred upon the old 
trustees. By acts of the legislature these rights were in 
effect given over to a different set of men. The new trustees 
and twenty-five directors became the real administrators of 
the college. Webster, who pleaded the case of his alma 
mater, declared in substance that the taking of rights which 
belonged to A and the giving of them to B was not an act of 
legislation, but an act of oppression. 

Among other points the Court decided that the college 
was not a public but a private institution; therefore the 
State had no authority to provide for its 
A Charter Is government. It also held that a charter is a 
a Contract. contract; that is, a private charter is a con- 
tract between the State and the corporation. 
The acts of the New Hampshire legislature making changes 
in the organization of the college impaired the obligation of 
the contract and were therefore void. 

The remaining restraints upon State action require no 
commentary. Their meaning is self-evident. 



SUMMARY 95 

The preceding chapters have explained briefly the consti- 
tution of Congress. Prom that examination it appears: 

(a) That all legislative power vested in the Federal Gov- 
ernment is granted to Congress. 

(6) That Congress is composed of two branches, viz., a 
House of Representatives and a Senate, whose members are 
chosen by the legal voters of the various commonwealths. It 
used formerly to be said thai the Senators represented the 
sovereignty of the Slates and that the members of the Bouse 
represented the people. 

The House is a law-making body almost 
Three-fold exclusively. The Senate, however, performs 
Function of three different functions, viz., legislative. 
Senate. executive and judicial. 

(c) It has been shown thai Congress can- 
not pass laws upon all conceivable subjects but only upon 
those enumerated in the Constitution. These are known 
as express powers, but in carrying them out il is very 
often necessary to pass laws upon subjects not mentioned 
in the Constitution. These laws are said to be passed by 
virtue of the implied powers. In respect to the extent of 
these there has been, and there still exists, considerable 
difference of opinion. 

(d) Besides the granting of certain powers to Congress 
the Constitution also imposes upon it a number of limit a- 
I ions. This recalls a part of our definition that a constitution 
is a restraint upon government. Our Constitution, as already 
stated, does much besides. There are also limitations such 
as that concerning titles of nobility, placed upon the United 
States. This means that such distinctions can not be granted 
by any of the three departments. It will also be remembered 
that there are some important restraints upon the States. 



96 NATIONAL AND STATE LEGISLATURES 

(e) In inquiring whether Congress has the power to pass 
a law it is to be presumed that it cannot unless the power is 
expressly granted or unless it may be reasonably inferred 
from the powers granted. On the other hand, it is to be 
presumed that the State legislatures can pass laws upon all 
subjects whatever, unless the power is expressly denied. 



CHAPTER XI 

THE FRAME OF GOVERNMENT 

The Executive 

By the Constitution, Art. II, sec. 1, 'The Executive Power 
is vested in a President of the United Si ales of America." 
Under the Articles of Confederation there was 
Reason for no President. Functions now performed by 
Single that officer, so far as they were attended to at 

Executive, all, were left to committees and to boards and 
to Congress itself. This plan worked very un- 
satisfactorily. In determining whether the executive power 
should be vested in one person; in a commission of three 
(one from each section of the Union) or in a committee of 
thirteen, one from each State, the Convention was influenced 
by three important considerations, viz., responsibility, 
promptness, and energy. 

It is clear that if the executive power was to be lodged 
in two or more persons, it would be impossible to tix the 
responsibility for an unwise or a bad act, or to reward a 
good one. Then, too, a committee would be likely to con- 
sider at great length a proposed act and to waste time in 
coming to a conclusion. Generally speaking, one person 
would act more promptly than a committee. When a single 
executive had once approved an act of Congress his official 
character would be bound up with its success, and he would 
see that the law was executed with energy. From this 
reasoning it is evident that the qualifications desired by 
the Convention would be found in a single rather than in 
a plural executive. 



97 



98 FRAME OF GOVERNMENT 

A popular election of the President was proposed though 
not adopted by the Convention of 1787. That method still 
finds favor with many, but it is not the plan pro- 
Term of vided by the Constitution. "He shall hold his 
Office. Office during the Term of Four Years; and, to- 
gether with the Vice-President chosen for the same 
Term, be elected as follows:" 

The qualified voters of the different States cast their 
ballots for citizens known as Presidential electors. The 
people do not vote directly for the President 
Not Chosen or the Vice-President. On the Tuesday after 
Directly. the first Monday in November of every fourth 

year the legal voters of all the States elect a 
number of persons whose duty it is to choose a President 
and a Vice-President. Each State is entitled to appoint in 
its own way as many electors as it has Senators and Repre- 
sentatives in Congress. Thus the State of Delaware, which 
has one Representative and two Senators in Congress, is 
entitled to appoint three Presidential electors, Avhile New- 
Jersey, which has twelve Representatives and two Senators, 
chooses fourteen. The body of electors ap- 
Number of pointed in each State is known as the elec- 
Presidential toral college. Its sole duty is to select a 
Electors. President and a Vice-President. It is clear 

that at any given time there are as many 
electors in all the States as there are Senators and Repre- 
sentatives in Congress. 

At first these electors were often, though not always, 

appointed by the legislatures of the various States. The 

method of choosing them by popular vote, how- 

Choiceof ever, gained ground, and after 1808 they were 

Electors, everywhere elected by the people. "No Senator 

or Representative, or Person holding an Office of 



CHOOSING A PRESIDENT 99 

Trust or Profit under the United States, shall be appointed 
an Elector." Art. II, sec. 1; cl. 2. 

The electors chosen by the popular vote in November go 
to their respective State capitals and, on the first Wednesday 
in December, vote for President and Vice-Presi- 
Votingfor dent, at least one of whom shall not be an in- 
President. habitant of the same State with themselves. 
The electors prepare three copies of the votes 
which they have given. One is forwarded by mail to the 
President of the United Stales Senate, another is taken l>y 
special messenger to the same official. This must be at the 
National Capital before the first Wednesday in January. 
The third copy is deposited with the Judge of the United 
States District Court of the district in which the members 
of the electoral college meet. If for any reason it should 
appear dangerous or inconvenient for the electors to meet 
at any State capital, its Legislature is empowered to fix 
another place where they may cast their Votes. It might 
so happen that on the first Wednesday in December the 
State capital would he in the possession of a hostile army. 

Votes cast on any day other than the first Wednesday of December 
may or may not be valid. The question has come up, but it has 
not been settled. In 1856 a severe snow storm prevented the 
electors of Wisconsin from meeting at their State capital on the 
day fixed by law. They voted on the following day, but when the 
two Houses of Congress met in joint convention, on the second 
Wednesday in February, to count the electoral votes there was some 
objection because of this slight irregularity. It was not then de- 
cided whether Wisconsin's vote was valid or invalid, for in either 
case Buchanan and Breckenridge were elected by a safe majority. 
Under different circumstances this might have caused trouble. 

In the Presidential election of 1800 Thomas Jefferson and 
Aaron Burr received from the electoral colleges precisely 
the same number of votes. As the Constitution then stood, 
the candidate having the highest vote was declared Presi- 



100 FRAME OF GOVERNMENT 

dent, provided the vote was a majority of all that were cast. 
The person receiving the next highest vote was declared 
Vice-President. The ballots of the electors did not specify 
for what office either candidate was in- 
House Chooses tended. As each received seventy-three 
a President. votes, neither received the highest vote. 

Therefore the duty of choosing a President 
devolved upon the House of Kepresentatives. In such a con- 
tingency the House votes by States, the representation from 
each State having one vote. As is well known Mr. Jefferson 
was elected. To avoid for the future all 
Twelfth danger from that source a twelfth amend- 

Amendment. ment was added to the Constitution in 1804. 
Since that time the electors indicate on their 
ballots for what office each candidate is intended. Other 
changes in the method of electing a President were made 
by the same amendment. One of these will be mentioned 
in the succeeding paragraph. 

In the election of 1824 there were four candidates for 
the Presidency, viz. : 

Andrew Jackson, who received 99 electoral votes; John 
Quincy Adams, who received 84; William H. Crawford, who 

received 41; Henry Clay, who received 37. 
Plurality Does The total vote cast was 261 ; of this number 
Not Elect. 131 is a majority. No one of the candidates 

having received a majority, as required by 
the Constitution, the election went into the House of Kepre- 
sentatives. By a provision of the twelfth amendment the 
House was compelled to choose from among the three highest 
on the list. This excluded Henry Clay. Before the adop- 
tion of that amendment, however, the House could choose 
from among the five highest. The votes of thirteen States 



THE ELECTORAL COMMISSION 101 

were given for John Quincy Adams; seven cast their votes 
for Andrew Jackson, and Mr. Crawford re- 
A Plurality, ceived the votes of four. Mr. Adams was 
therefore declared President. The result shows 
that Andrew Jackson received a plurality, though not a 
majority of all the votes cast. The reason why a plurality 
should not elect is evident. There were 99 ballots for, and 
162 against him. 

By giving him 182 votes the electoral colleges chose John 
C. Calhoun for the Vice-Presidency. The principal contest 
was for the Presidency. Had Mr. Calhoun 
Senate Once not been thus appointed a Vice-President 
Elected Vice- would have been selected by the United 
President. States Senate. This actually happened in 

1837, when that body chose for the Vice- 
Presidency, Eichard Mentor Johnson. When it is remem- 
bered that the duty of that official is to preside over the 
Senate the propriety of giving to that body the right to 
choose its own presiding officer is apparent. 

More celebrated and more dangerous than any of these 
contests was the disputed election of 1876. At that time 
there arose a difficulty which no one appears 
The Electoral to have foreseen. At any rate it had not 
Commission. been provided for. There were double re- 
turns from Florida, Louisiana, Oregon and 
South Carolina. The Eepublican candidates were Ruther- 
ford B. Hayes and William A. Wheeler, while those of the 
Democratic party were Samuel J. Til den and Thomas A. 
Hendricks. To settle the controversy an Electoral Commis- 
sion was appointed by Congress. It was composed of five 
Representatives (three Democrats and two Republicans), 
five Senators (two Democrats and three Republicans) and 
five Associate Justices of the United States Supreme Court. 
Two of the Justices were Democrats and two Republicans; 



L02 FRAME OF GOVERNMENT 

these were to choose a fifth Justice. It is clear that he was 
to be the most important factor in the commission. To 
illustrate the nature of the dispute it is only necessary to 
cite the case of Florida. 

Three returns from that State were sent to the electoral 
commission. That of the Hayes electors had the certificate 
of Florida's Governor annexed; while that 
Hayes Chosen of the Tilden electors had a certificate from 
by Party Vote, the Attorney-General of the State; the third 
return was the same as the second, but it 
was strengthened by a certificate from the new Governor. 
By a vote of eight to seven the commission decided in favor 
of the validity of the entire Hayes electoral ticket. By the 
same vote, eight to seven, the commission pronounced in 
favor of the validity of the Hayes electors in Louisiana. 
The disputed return from Oregon was determined by the 
same vote; so also were the returns from South Carolina. 
The method of counting adopted by the electoral commission 
awarded to Mr. Hayes 185 votes, while Mr. Tilden was given 
184. The former was therefore declared President. Many 
lawyers believe that the establishment of the Electoral Com- 
mission was not constitutional. The law which created it, 
however, was passed by a Democratic House and a Ke- 
publican Senate. 

By the Constitutional Convention various terms were pro- 
posed for the President. Some, though only a few, would 

have appointed him during good behavior. 
No General It was at first agreed that he was to serve 
Agreement for a period of seven years. Later this was 
as to Term of changed to the shorter term of four years. 
President. If the Chief Executive were elected for a 

long period, it was feared that the struggle 
for so great an office might lead to considerable disturbance 
or even to civil war. On the other hand, the short term of 



PRESIDENT IS RE-ELIGIBLE 103 

four years causes too frequenl an interruption of the busi- 
ness of the country. In trade the Presidential year is always 
a dull one. Probably it would be impossible to agree upon 
a term that would be altogether free from objection. 

There is nothing in our Federal Constitution to prevent 
successive re-elections of a President. For any legal pro- 

vision on the subject he could be chosen as 
President is often as President Diaz, of Mexico, who was 
Re-eligible. recently serving his seventh term. Washington 

refused to become a candidate for a third 
term; his example was followed by Jefferson, and the custom 
thus established has come to possess almost the force of 
law. Only two Presidents, General (Irani and President 
Roosevelt, have seriously attempted to secure a third term. 
Both failed in their efforts. 

When the Constitution was adopted there were living in 
the United States many naturalized citizens who had 
rendered during the Revolutionary era ini- 
Foreigrirborn portant civil and military services. Under 
Citizens in the various State laws they were eligible to 
Convention. the highest official positions. They could not 
be expected to favor the adoption of a new 
Constitution (hat would tend to lower them in their respec- 
tive communities. One great object of the Convention was 
to secure the adoption of the constitution that they were 
preparing. To do this they needed the assistance of all 
citizens whether of native or of foreign birth. Indeed, many 
of the delegates in the Convention were born outside the 
United States. It is necessary to name only a few of them. 
Hamilton, Wilson, Eobert Morris, Butler and Mc Henry were 
among the ablest and the best known of the members of 
the Convention. Thus it happened that those who were 
citizens at the time of the adoption of the Constitution 



104 FRAME OF GOVERNMENT 

(1788) were made eligible to the Presidency. As the citizens 
of that era have long since passed away, 
President a no one can now become President ex- 
Natural born cept a ^'natural born" citizen. That is, one 
Citizen. who has acquired his citizenship by birth 

within the country. As explained in a pre- 
ceding chapter there are many persons born within the 
United States who are not American citizens, for their 
parents, though residing here, are subject to the jurisdiction 
of some foreign state. The Constitution further requires of 
the President a residence of fourteen years within the 
country, but there is nothing to show either that the fourteen 
years must immediately precede his election or that it shall 
be a single period. 

The electoral system for choosing a President seems to imply on 
the part of the framers of the Constitution some distrust of popular 
judgment and, perhaps, some fear of popular excitement. According 
to their theory the people were competent to elect intelligent and 
responsible gentlemen to act for them; because of greater knowl- 
edge and wider acquaintance with public men these gentlemen 
would look over the country and find the person possessing the best 
qualifications for the Presidential office. In other words, this select 
body could better judge of the fitness of men for that important 
position than the people could for themselves. The electors were 
expected to exercise, and at first they did exercise their individual 
judgment in choosing a President. In this way Washington was 
elected. 

Congressional caucuses, however, soon came to nominate candi- 
dates, and that method continued up to and including 1824. During 
that period the Presidential electors seldom exercised any discre- 
tion. They merely voted for the candidates of the Congressional 
party caucus. This system would tend to confine the nomination 
to members of Congress and naturally would be opposed by every 
able and ambitious statesman outside that body. To those men 
it gave almost no chance to attain the Presidency. 

The State legislatures next took a hand in the nomination of 
candidates. Many States, however, had favored sons; this would 



CONVENTIONS AND PLATFORMS 105 

bring about many nominations, with the result that no candidate 
would receive a majority of all the votes cast. This would often 
throw the election into the House of Representatives, and for that 
and other reasons the method never became popular. 

About 1832 there came into use the present system, that 
of naming candidates through a national nominating con- 
vention. Since that time Presidential electors 
National have merely registered the decrees of party 

Nominating conventions. In a Presidential year the great 
Convention, political parties hold their conventions at 
different times and usually at different places. 
In every convention the States are represented by twice 
as many delegates as they have Senators and repre- 
sentatives in Congress. Two delegates are appointed for 
each Congressional district and four for the 
The Platform. State at largo. Each convention names per- 
sons for the Presidency and Vice-Presidency 
and also prepares a statement of its political faith. This 
expression of political belief is called a platform. 

This preliminary work is done early in the summer of 
the Presidential year, usually in June. Midsummer is spent 
in organizing for the campaign, which opens 
Elector Votes in earnest about October and continues to 
For Party increase in activity and interest till the very 

Candidates. eve of the election. The electors of Presi- 
dent and Vice-President then chosen do not 
exercise any discretion whatever. They simply vote for the 
candidates named by the conventions of their respective 
parties. This custom has now acquired something of the 
force of law, and no elector ever thinks of voting for any 
set of candidates other than those nominated in the con- 
vention of his party. 



106 FRAME OP GOVERNMENT 

From the preceding account it is evident that we have a 
written Constitution, which provides one method of electing 
a President, and an unwritten constitution, 
Tiro Con- which appoints him in a very different manner. 
stitntions. The national nominating convention, therefore, 
may be regarded as a silent amendment of this 
part of the Constitution. 

In another connection the subject of party government 
will be briefly discussed. For the present it is sufficient 
to state that with some minor disadvantages it combines 
many advantages. 

By the Convention it was foreseen that the President 
might die during his term, and to provide for such a con- 
tingency the office of Vice-President was 
Provision created. An act passed in 1791 went a step 

For Vacancies, farther, and provided that in case of the 
death, resignation or disability of both the 
President and Vice-President the office should devolve first 
upon the president pro tempore of the Senate and then upon 
the Speaker of the House, until the disability should be 
removed or a new election be held. General Garfield, a 
newly elected President, was shot on July 2, 1881, and died 
in September following. The new Congress would not meet 
until the first Monday in December, therefore, there would 
be no President pro tempore or Speaker, and the Presidency 
would lapse if any accident disabled Vice-President Arthur. 
The matter was discussed at the time though it 
The Succes- was not till 1880 that Congress passed the Presi- 
sioii Act. dential Succession Act. By this law the mem- 

bers of the President's cabinet succeed to his 
office in the following order, viz., Secretary of State, Secre- 
tary of the Treasury, Secretary of War, Attorney-General, 
Postmaster-General, Secretary of the Navy, Secretary of the 
[nterior. Provided, of course, that each has the qualifica- 
tions that are required by 1 he Constitution. 



CHAPTER XII 

THE FRAME OF GOVERNMENT 

The Executive 

It is universally known that every elector favored the 
choice of Washington for the Presidency. As stated in the 
preceding chapter he might have had a third term but he 
declined the honor. Except Monroe, when he was a second 
time a candidate, all other Presidents have had competitors. 
Indeed, of those chosen many have received a minority of 
the popular vote, but, of course, a majority of 
.1 Minority the electoral votes. In the election of I860 the 
President. candidates opposed to Mr. Lincoln received 
collectively almost a million votes in excess of 
the number cast for him. Vet he received from the electoral 
college a decided majority. He was, therefore, what is 
called a minority President. In the history of the Federal 
Government there have been nine such Presidents. 

How it is possible for a candidate to have a majority of 
the electoral votes and yet receive a minority of the popular 
vote may be easily understood by considering the case of 
any two States, as, for example, New York and New Jersey. 
Let it be assumed that each of the thirty-eight Republican 
electors in New York receive 701,000 votes and that the 
Democratic electors each receive 699,000. Of course the 
Republican electors "carry" the State, and in the "college" 
cast thirty-eight ballots for the Republican candidates for 
President and Vice-President. Suppose further that the 
twelve Democratic electors in New Jersey each receive 
300,000 votes and that the twelve Republican electors re- 
ceive 100,000. It is clear that the Democratic electors win 

107 



108 FRAME OF GOVERNMENT 

the State, and in the electoral college will cast twelve ballots 
for the Democratic candidates. The result in the two States 
may be represented thus: 

Republican Vote Democratic Vote 

New York 701,000 New York 699,000 

New Jersey 100,000 New Jersey 300,000 



801,000 999,000 

In other words, 801,000 votes in both States win for the 
Republican candidates thirty-eight electoral votes, while 

999,000 win for the Democratic candi- 
Success dates only twelve electoral votes. It is 

Depends on evident that the general result depends 

Location of Vote, not so much on the total popular vote as 

upon the circumstance of its being cast 
in the populous States. Political parties endeavor, there- 
fore, to get their majorities in the great States. 

Another incident of the electoral system, the division or 
splitting of the vote of a State, is, perhaps, more difficult 
for young persons to understand. To illus- 
Splitting of trate how this may occur let us suppose 

Electoral Vote, that in the State of Delaware A, B and C 
are the Democratic candidates for electors, 
and that D, E and F are the Republican candidates. The 
result of the voting is as follows: 

Democratic Republican 

A receives 25,000 D receives 20,000 

B receives 25,000 E receives 10,000 

C receives 15,000 F receives 10,000 

A, B and D, being highest on the list, will go to their State 
capital on the first Wednesday in December following the 
election, when A and B will vote for the Democratic candi- 



INDEPENDENCE OF PRESIDENT 109 

dates for President and Vice-President while D, who has 
defeated one of the Democratic electors, will vote for the 
Republican candidates. This division of the electoral vote 
of a State is likely to occur when party strength is evenly 
balanced, it happens occasionally that an unpopular candi- 
date, as C in the above list, for Presidential elector, will be 
defeated even though his colleagues on the ticket are suc- 
cessful. In 18G0 the electoral vote of new Jersey was di- 
vided between Lincoln and Douglas. 

The compensation of the President is fixed by Congress, 
but that body does not possess unlimited authority over the 
subject, for the Constitution says that the salary 
Salary of of the President "shall neither be increased nor 
President, diminished during the period for which he shall 
have been elected." If it were in the power of 
Congress to increase or diminish the salary of the President 
during his term of office, his independence would be very in- 
secure. One of the fundamental ideas in framing the Con- 
stitution was to make the three departments of the Gov- 
ernment separate and distinct. In theory at least they were 
intended to be coordinate. If at any moment Congress 
could raise the salary of the Chief Executive, they might by 
holding out such a promise tempt a weak President to ap- 
prove a law that would be injurious to the public welfare. 
If at any moment they could diminish it, he might fear to 
veto a measure which his judgment knew to be dangerous. 

In a word, absolute control by Congress over 
Independence the compensation of the President would de- 
of President. stroy his independence. So far, then, as 

concerns his salary he is independent of 
Congress. In 1790 the compensation was fixed at $25,000 
a year; in 1871 it was increased to $50,000 and it is now, 
January, 1914, $75,000 per year. Besides his salary the 
President has the use of the Executive Mansion, popularly 



110 FRAME OF GOVERNMENT 

known as the White House. Congress also appropriates 
money for illumination and fuel as well as for the main- 
tenance of stables and the wages of a steward. In traveling 
by water a public vessel is usually placed at the disposal of 
the President. 

In time of war the Executive tends to overshadow both 
the Legislative and Judicial branches of the Federal Gov- 
ernment. Even in time of peace an able and 
Appointing enterprising President wields an influence as 
Power. great as, or even greater than that of Congress. 

It is his power of appointment to and removal 
from office that makes him so potent a factor in the Na- 
tional Government. President Washington controlled only 
about seventy-five appointments, but since his time the 
number of persons in the service of the United States 
Government has increased immensely. Of Executive offi- 
cials and employees there are about 236,000. Connected 

with the Judiciary there are 2,250 and in 
Incumbents in the Legislative branch only 1,600. In the 
Office. Post Office Department alone there are now 

upwards of 150,000 employees. Though this 
vast army of officials is responsible to the President, he 
appoints directly only the more important of them. In the 
remaining departments he has the power to appoint other 
multitudes, and, what is not less important, the power to 
remove them. He appoints all military and naval officers. 
He also appoints and may recall the representatives in our 
foreign service, consular and diplomatic. The members of 
the Federal Judiciary are nominated, and by and with the 
advice and consent of the Senate appointed by the Presi- 
dent. 



POWERS OP PRESIDENT 111 

Except in cases of Impeachment the President has power 
to grant reprieves and pardons for all offences against the 

United States, lie receives ministers from 
Powers and foreign countries, and with the Senate shares 
Duties. in the treaty-making power. When the Senate 

is not in session he may make temporary ap- 
pointments. He is empowered to convoke Congress in special 
session, and when the two Houses arc unable to agree upon 
a time for adjournment, lie is authorized to adjourn them t<> 
such date as he Ihinks proper. However, without any direc- 
tion from him they can again convene on the day tixed by 
law. Peyond thai time he can not, of course, adjourn them. 

One of the most important of his functions is to "take care that 
the laws be faithfully executed." This was one of the great problems 
that confronted President Lincoln. How he met it is a matter of 
familiar history- Not to speak of great insurrections there is some- 
times, because of mobs and riots, more or less obstruction to the 
execution of the laws. For their enforcement the President is 
empowered to use the military and naval forces of the United States. 

The sovereigns of G real Britain possess, m least in theory, 
an absolute negative on legislation. II' Parliament pass an 

act, the King or the Queen can veto it, and it 
The Veto in fails to become a law. That is the end of the 
England. matter. If, however, the lawmaking body of 

England is keenly interested in passing a 
particular bill, it would be very imprudent tor the sovereign 
to defeat the will of Parliament, because that body would 
find numerous opportunities for embarrassing their ruler. 
Since the reign of Queen Anne no English sovereign has 
exercised this power. Perhaps the real explanation is to be 
found in the fact that in 1833 the location of the sovereign 
power was changed and before -that time it was slowly 
changing. Since that date the sovereignty of the state has 
resided in the House of Commons. 



112 FRAME OP GOVERNMENT 

By the Federal Constitution our President is given not an 
absolute but a qualified negative on legislation. From the 
debates in the Convention and from the com- 
Vote in mentary in the Federalist it would seem that this 
America, power was regarded as a defensive one. It was 
feared by the members of the Convention that 
Congress might encroach on the domain of the Executive or 
the Judiciary: hence they armed the President with the 
veto. He may veto any measure that he regards as uncon- 
stitutional, any act that encroaches on the functions of his 
own department, on the rights of individuals or on the rights 
of the States. The veto is also an obstacle to hasty legisla- 
tion. Indeed, the mere existence of the power has a tend- 
ency to make Congress consider more carefully any law 
which is submitted to the President. In almost every view 
of the subject this power is of very great importance. 

Concerning bills that have been vetoed our history shows that 
most of them have failed to become laws. President Cleveland sent 
to Congress three hundred and one vetoes, and of the measures 
involved almost none became laws. For the most part the acts 
which he opposed were pension bills and measures for the relief 
of private persons. General Grant used the veto power with great 
freedom. Though this prerogative has been used by nearly all the 
Presidents, Andrew Jackson was the first to employ it systematically. 
Andrew Johnson, too, made a spirited use of this power, but most 
of the bills negatived by him were passed over his objections. A 
careful examination of this subject would show that the veto power 
of the President is nearly as effective as if it were absolute. 

When a bill has been passed by both Houses of Congress 
it is submitted to the President for his approval. He may 

dispose of it in one of the following ways: 
The Presi- (a) He may sign it and thus show his ap- 

dent's Action, proval. (ft) He may keep it for ten days 

(Sundays not included) and though he refuse 
to sign it, allow it to become a law by failing promptly to 



THE "POCKET VETO''' 113 

return it. (c) He may return it with his written objections 
to that House in which it originated. These must be entered 
in full upon the Journal of that House. The bill together 
with these objections is then considered, and if passed by 
two thirds of the members, is sent with the President's 
objections to the other House. If after considering it this 
body also pass it by a two thirds majority, the bill becomes a 
law without the President's approval, (d) He may with- 
hold his signature, but not wishing to assign reasons for his 
failure to sign it may simply keep the measure by him and 

take no action upon it. If before the expira- 
The "Pocket tion of ten days Congress should adjourn, the 
Veto." bill fails. This is what is known as the "pocket 

veto," and was first employed by I 'resident 
Jackson. It is doubtful whether this ingenious method 
of defeating a measure would have been approved by the 
trainers of the Constitution. Orders, resolutions and votes 
to which the consent of both Houses is necessary must be 
submitted, just like bills, for the approval of the President. 
The President "may require the Opinion, in writing, of the 
principal Officer in each of the Executive Departments, upon 
any subject relating to the Duties of their respective Offices." 
(Art. II, sec. 2, cl. 1.) This is the only reference in the Con- 
stitution to the President's "Cabinet." The members, now 
nine in number, are nominated by the President and con- 
firmed by the Senate; they are then commissioned by the 
President. Though personal friendship enters somewhat 
into their selection, there is some reference to geographical 
considerations in appointing them. As a rule, two members 
are not chosen from the same State. Yet this is some- 
times done. If he so elect, the President may follow their 
opinions, but if he choose, he may altogether ignore them. 

Three members of President Lincoln's Cabinet favored, and three 
opposed the admission of West Virginia as a separate State. This 



Ill FRAME OF GOVERNMENT 

important question was therefore determined by Mr. Lincoln him- 
self. The responsibility for issuing the Emancipation Proclamation 
he also assumed himself. It was as to the time of its publication 
and the phraseology of the document that he consulted his ad- 
visers. On these matters he accepted their suggestions, but the 
main question he decided for himself. It is well known that Presi- 
dent Jackson attended more to the suggestions of his personal 
friends in the so-called "Kitchen Cabinet" than to the advice of his 
constitutional cabinet. Generally the members of the cabinet serve 
as long as the President who nominates them. Some Executives, 
however, change the personnel of their cabinets very frequently. 
While the same political party continues to administer the Govern- 
ment a particularly able member may be asked to retain his office. 
Albert Gallatin was Secretary of the Treasury for thirteen years. 
As the President is held responsible for the efficient performance 
of his duties, it would be unjust to compel him to retain in his 
cabinet a secretary who had become unacceptable or who had re- 
fused to carry out the policy of the administration. For this and 
for other reasons Presidents have not been greatly embarrassed by 
being obliged to keep in their council those whom they desired to 
dismiss. The removal of Secretary of War Stanton, however, was 
one of the grounds for the impeachment of President Johnson. 

The existence of a cabinet has been alluded to. It remains 
to sketch in outline the functions of the Secretaries who 
compose it. In Washington's cabinet there 
Groicth of were four members, viz., a Secretary of State, 
Deparments. a Secretary of the Treasury, a Secretary of 
War and an Attorney-General. Since that 
time five other Executive Departments have been created. 
In the administration of John Adams provision was made 
for a separate establishment for the Navy, which had pre- 
viously formed a division of the War Department. Presi- 
dent Jackson invited the Postmaster-General into his cabi- 
net. The Interior Department was created in 1849, and in 
1889 the Bureau of Agriculture was made a Department. In 
1903 there was established a Department of Commerce and 
Labor. 



THE DEPARTMENTS 115 

The Secretary of State, now the most important of the 
cabinet members, is eh idly concerned with our foreign rela- 
tions. He is the only person authorized to communicate 
willi other governments. He is in charge of consular and 
diplomatic representatives and has an important share in 
the negotiation of treaties. He is also custodian of the 
great seal of the United States and keeper of the national 
archives. He superintends the publication of Federal Laws, 
treaties and proclamations. 

The Secretary op the Treasury tills a position of the 
greatest responsibility. Indeed, the duties of thai office have 
been arduous from the beginning. When Alexander Hamil- 
ton, the first to fill the position, began the organization of 
that Department, the Treasury was empty and the credit 
of the infant Republic at the lowest ebb. Webster lias 
elegantly stated that Hamilton "smote t lie corpse of public 
credit and it Sprang to its feet." An account of his famous 
series of financial measures belongs to our political history. 

The Secretary of the Treasury is required to keep the 
public accounts and to attend to the collection and disburse- 
ment of the Federal revenue. The mint, the custom-houses 
and the marine hospitals are under the supervision of this 
department. Among its important divisions are the Bureau 
of Engraving and Printing and the Life Saving Service. The 
Director of the former superintends the engraving and print- 
ing of the currency, securities, revenue and postage stamps 
of the United States. 

The Secretary of War is, under the President, the head 
of the army. Though all Secretaries of War are not trained 
army officers, all Secretaries rank higher than the general 
commanding the army. It should be observed that for this 
important position President Washington selected General 
Knox, an officer of experience in the Continental Army. The 
Secretary of War is assisted by a Commissary-General of 



116 FRAME OF GOVERNMENT 

Subsistence, who attends to the supply of food for the army ; 
by a Quartermaster-General, who purchases all other sup- 
plies, and by an Adjutant-General, who keeps a record of all 
enlistments, promotions, casualties, and discharges. The 
immense number of applications for pension imposes upon 
this official a vast amount of work. 

The Secretary of the Navy has many duties to perform. 
He has charge of the construction of ships of war. This 
work is entrusted to a Bureau of Construction and Kepair. 
He maintains the force and gives orders to the officers. He 
also has charge of the naval observatory, located in Wash- 
ington, and publishes the nautical almanac. 

The Postmaster-General, as already remarked, did not 
become a member of the cabinet till the administration of 
General Jackson. An official performing similar functions, 
however, was known to the American people under the 
Articles of Confederation. According to the amount of 
business transacted by them, all the Post Offices of the 
United States are divided into four classes. Of the first 
three there are about 4,000 and their postmasters are 
appointed directly by the President. The Postmaster-Gen- 
eral appoints about 70,000 others. It is scarcely necessary to 
add that he has far greater patronage than any other head 
of department. The nature of his duties is well understood, 
and it is equally well known that the Post Office Department, 
though conducted by the Government, is not managed for 
profit. Its successful management is used by socialists and 
some others as an argument in favor of the Government 
ownership of railways, telegraph and telephone lines and 
similar enterprises. 

The names of the bureaus of the Interior Department 
indicate the variety and importance of the duties performed 
by its Secretary. The Commissioner of Public Lands, the 



THE DEPARTMENTS 117 

Commissioner of Pensions, and the Commissioner <>f Patents 
are each in charge of important public offices. More recently 
than these lias been established a Bureau of Education; 

there is also the Geological Survey. To advise the Secretary 
in passing upon questions of pension law, patent law, mining 
law, land law and Indian treaties there is provided ;i special 
assistant attorney -general. 

The Attorney-General is the legal adviser of tin- Presi- 
dent and of the other heads of departments. He also 
represents the United States in all soils to which they are a 
party. To relieve him of a great amount of pleading and of 
legal investigation there are provided several assistant At- 
torneys-General and a Solicitor-General. Though there was 
an Attorney-General in Washington's cabinet, the Depart- 
ment of Justice was not organized till 1871. 

A Bureau of Agriculture has existed since 18G2 bnt it 
was not till 1889 that it was raised to the rank of a de- 
partment. It sends seeds as well as information concerning 
them to such farmers as apply for them. This great public 
service has been somewhat abused by wasteful methods of 
distribution. The department supervises the inspection of 
meats that are intended for the export trade; it likewise 
conducts experiments with plants in older to ascertain what 
variety gives the best results. For this purpose there are 
experiment stations established throughout the country. Its 
most important divisions are: the Weather Bureau, the 
Forestry Division and the Bureau of Animal Industry. 

The Department of Commerce and Labor was created in 
J 903. Its Secretary has charge of corporation accounts and 
is chiefly engaged in collecting statistics, making investiga- 
tions and preparing reports. Recently there has been created 
a Department of Commerce and a Department of Labor. 

Besides these Departments there are in the Executive 



118 FRAME OF GOVERNMENT 

branch of the Federal Government several very important 
commissions, viz. : The Industrial Commission, The Inter- 
state Commerce Commission and the Civil Service Commis- 
sion. The nature of each of these as well as the organiza- 
tion and functions of the several Departments may be easily 
learned from an examination of the Congressional Directory, ' 
a publication easily obtainable. 



CHAPTEK XIII 

THE FRAME OF GOVERNMENT 

"The Judicial Power of the United Suites shall be vested 
in one supreme Court, and in such inferior Courts as the 
Congress may, from time to time, ordain and establish. 
The Judges, both of the supreme and inferior Courts, shall 
hold their Offices during good Behavior, and shall, at stated 
Times, receives for their Services a Compensation which shall 
not be diminished during their Continuance in Office." Art. 
Ill, sec. 1, cl. 1. 

The Constitution, it will be observed, mentions "a supreme 
Court." The organization of that tribunal, however, is left 
to Congress; to this body is also granted 
Duties Imposed the power to create such inferior courts as 
on Congress. appear to be required. With the tenure of 

office of the judges in both the supreme 
and inferior courts Congress has nothing whatever to do, 
for by virtue of the constitutional provision all Federal 
judges continue in office during good behavior. To strengthen 
still further the independence of the Judicial 
Independence Department it is provided that the salaries 
of Judiciary. of the judges cannot be diminished while 
they remain in office. Tt will be remembered 
that, on the other hand, the salary of the President can 
neither be increased nor diminished during his term of 
office. The explanation of this difference is that the com- 
pensation which is adequate for a President at the begin- 
ning of his term will be sufficient at the end of four years. 
In the case of a judge, however, the salary that is sufficient 



119 



120 FRAME OF GOVERNMENT 

when he takes office may be very inadequate twenty or thirty 
years later. In that period the cost of living increases 
greatly. Chief Justice Marshall presided in the United 
States Supreme Court from 1801-1835. In the circuit courts 
judges have served upwards of forty years, and in at least 
one instance a judge has served fifty years. 

Unlike the Federal system, in which the judges are ap- 
pointed by the President, by and with the advice and consent 
of the Senate, and in which they hold office 
Tenure in during good behavior, the State judiciaries are 
the States, elective and the judges thereof hold office only 
for a period of years. To this rule there are 
a few exceptions. Massachusetts, for example, appoints 
judges during good behavior. In other words, the judicial 
system of that Commonwealth is like the 
Exceptions. Federal system. If the courts of that com- 
munity are not the very best in the Union they 
are at least equal to the best. 

By virtue of its constitutional authority Congress has 
established in each commonwealth at least one District 
Court. New York has four and Pennsylvania three 
District such tribunals. Many States have two, and in 
Courts. the entire Union there are about eighty. Portions 
of different States are never combined to form a 
judicial district, each State having one or more district 
courts. 

The officials of the United Slates district courts are: a 
judge appointed by the President by and with the advice 
and consent of the Senate; a marshal, who executes the 
processes of the court, and whose office corresponds to that 
of a sheriff; a clerk, who is the custodian of a seal, who 
issues writs and keeps a record of the business of the court; 
there is also a District Attorney. This officer prosecutes all 
offenders against Federal laws and represents the United 



THE JUDICIAL DEPARTMENT 121 

States in all suits to which it is a party. In the United 
States district courts the judges alone hold office during 

good behavior. 

Just above the district courts in the Federal system are 
the Circuit Courts: of these there are nine. In some of the 
circuits several Slates are included. Pennsylvania. 
Circuit New Jersey and Delaware, for instance, form the 
Courts, third circuit. To each of the nine circuits into 
which the United Stales are divided a justice of 
the Supreme Court is assigned, and in every district in his 
circuit he must preside at least once in two years. Besides 
the nine justices who go out from Washington there are 
circuit judges residing permanently in each circuit. 

Eanking still higher than the circuit courts are tribunals 
known as Circuit Courts of Appeals; these also are nine 
in number; they were established, only a 
Circuit Courts few years ago, for the purpose of relieving 
of Appeals. the United States Supreme Court of a part 

of the great amount of litigation that 
claims its attention. 

As stated in the preceding pages, Congress is required 
to organize the Supreme Court; that is it determines among 
other things the number of justices that 
The United States are to constitute that tribunal and fixes 
Supreme Court. their compensation. At first there were 

five justices in the Supreme Court; at a 
later epoch there were ten, and now there are nine, riz., a 
chief justice and eight associate justices. 



122 FRAME OF GOVERNMENT 

The principal officials of tbe United States Supreme Court 
are a reporter, who prepares for publication the decisions 

of the court, a clerk, whose duties are similar to 
Other those of the clerk in a district court, a marshal 

Officials, and a stenographer. In this as in all Federal 

courts the justices alone held office during good 
behavior. The court appoints the officials referred to. 

The United States Supreme Court is not only one of the most 
characteristic of American institutions but also one of the most 
useful. It would be difficult to overestimate the value of its services 
to the American people. There are few elements in our population 
who do not acknowledge its worth. During its entire career it has 
met with but little opposition from the Presidents or from Congress. 
At the beginning of the nineteenth century, it is true, it was not 
regarded with much favor by the political party then in power, and 
again during a part of the Reconstruction era (1865-1877) it was 
criticized by Congress. Fortunately, it passed successfully through 
both trials and now appears to be more firmly established in public 
confidence than it has ever been. 

In all cases in which a State is a party the Supreme Court 
has original jurisdiction; that is, it has the right to de- 
termine such cases in the first instance. The 
Jurisdiction, same is true of all cases affecting ambassa- 
dors, other public ministers and consuls. In 
all other cases the supreme court has only appellate juris- 
diction. That is, it can adjudicate such cases only after they 
have first been tried in some inferior court. 

Even very young pupils are aware that each State has a 
judicial system of its own, and they may be puzzled to know 
what necessity there was for establishing 
Power of a Federal system. They should first be 

Supreme Court, informed that the provision for a Federal 
judiciary was one of the important changes 
proposed by the Constitution. Our first chapters made it 
plain that there existed at the time of the Treaty of Paris, 



THE JUDICIAL DEPARTMENT 123 

in 178.",, the greatest con fusion . Indeed, it is well known 
that the brief interval till 17S7 was beginning to he marked 
by symptoms of anarchy. Perhaps the gravest danger was 
to be apprehended from the quarrels between the States. 
The Articles of Confederation, it is true, provided for 
national courts of three kinds, but these tribunals were 
subject to the jurisdiction of Congress. Under the Const i- 
tution the judicial department was made independent of 
Congress. It can hear not only Federal cases but appeals 
from the Slate courts. It can also veto or disallow Slate 
laws as well as national laws. The inability to restrain 
State legislation was one of the fundamental defects in the 
Articles of Confederation. 

Besides the system of Federal courts just described there 
have been established special tribunals. There is a Court of 
Customs Appeals; also a Court of (Maims, which meets 
annually in Washington. 

There are still other national courts but they are outside 
the judicial system just explained. Such are the territorial 
courts, the courts established in our dependencies and the 
courts of the District of Columbia. 

Sec. 2 of Art. Ill states that: "The judicial Power shall 
extend . . . to Controversies bet ween a State and Citizens 
of another State." An examination of this and the suc- 
ceeding portion of section 2 makes it appear that a citizen 
of one State can bring suit against another State, and soon 
after the establishment of the Government under the Con- 
stitution this was actually at temped by Alexander Chisholm, 
of South Carolina, who brought suit agaiust the State of 
Georgia. A majority of the Justices of the Supreme Court 
held that under the Constitution he possessed that right. 
From their opinion, however. Justice Iredell dissented, and 
his reasoning is of great historical interest because it sub- 
sequently became the legal basis for the Eleventh Amend- 



1U4 FRAME OF GOVERNMENT 

ment, which is as follows: "The Judicial Power of the 
United States shall not be construed to extend to any suit 
in law or equity, commenced or prosecuted against one of 
the United States by Citizens of another State, or by the 
Citizens or Subjects of any Foreign State." This provision 
of the Constitution is regarded by some competent critics 
as a source of grave danger in that it is opposed to a just 
and enlightened public policy, because it enables a State 
to repudiate its debts. This might cause dissatisfaction 
among the citizens of other States and incur for all the 
States the hostility of foreign powers. This amendment 
became a part of the Constitution on January 8, 1798. 

The third section of Article III defines treason and de- 
iscribes the testimony necessary to convict a person accused 

of that crime. All governments possess the power 
Treason to punish treason. It might, therefore, seem that 
Defined, it was unnecessary to state what no one would be 

likely to deny. That is, that the American state 
could protect itself by punishing those who attempted to 
destroy it. It is really a limitation upon the Government 
and a protection to the citizen, for it is not left to Congress, 
to the President, or even to the Judiciary to determine 
whether a particular offense is treason. It is clearly stated 
in the Constitution that treason against the United States 
shall consist "only in levying War against them, or in 
adhering to their Enemies, giving them Aid and Comfort." 
If the nature of treason were left vague, it would be possible 
for any administration to regard seditious speeches or even 
newspapers criticims of its policy as treasonable in char- 
acter, and to punish them as if they were really treason. In 
the past this had been a terrible instrument of oppression. 
By clearly defining treason and by describing the testimony 
necessary to convict the person accused the rights of the 
people are made more secure. 



THE JUDICIAL DEPARTMENT 126 

When his term as Vice-President was about to expire Aaron Burr 
conceived the idea of seizing the branch of the United States Bank 
at New Orleans, revolutionizing the Louisiana country and estab- 
lishing somewhere in Texas, then a Mexican province, a government 
of which he would be the head. To effect this object he caused to 
be assembled on an island in the Ohio river, and in the jurisdiction 
of Virginia, a force of about twenty-six men. In due time the 
expedition floated down the Ohio and on into the Mississippi. At 
Memphis it was stopped, but before the party went on shore the 
arms were sunk in the river. Burr was there given a hearing 
before the United States authorities. It appears that he attempted 
soon after to leave the country; was arrested and brought to Rich- 
mond, where he was tried for treason before Justice Marshall 
and acquitted. 

In his opinion in the case of Aaron Burr, .Marshall made 
clear several questions thai arose, friz.: (a) That the mere 

enrollment of men for such an enterprise as 
Opinion of Burr's would not constitute treason. The men 
Marshall. should be actually embodied, that is. brought 

together at some point, (b) It should further 
be shown that Burr was personally present or at some place 
where he could easily assume command of the expedition 
after it had started, (c) That the means at his disposal 
should bear some reasonable relation to the end to be accom- 
plished. Each of these points and others not mentioned 
should be established by the testimony of two witnesses. 

In declaring the punishment of treason, as by the Consti- 
tution it is empowered to do. Congress abandoned the bar- 
baric method recognized by the common law of England. 
The penalty of treason it declared to be death by hanging. 
An eminent authority (Pomeroy, Constitutional Law. p. 277, 
ed. 1881) thus describes the terrible severity of the old 
law: "The offender was to be drawn to the gallows; hung 
by the neck, and cut down alive: his bowels were to be 
taken out while he was alive, and burned: he was then to 
be beheaded and his body quartered/' According to the 



\'2Vt FRAME OF GOVERNMENT 

traditional phrase the traitor was hanged, drawn and quar- 
tered. In the latter part of the constitutional provision 
there is a prohibition to the effect that "no attainder of 
treason shall work corruption of blood." This can have no 
reference to that part of the Constitution which prohibits 
Congress from passing any Bill of Attainder. This was 
merely legislative trial, conviction and punishment. Such 
laws can be passed by neither a State Legislature nor Con- 
gress. The present provision, therefore, must 
Corruption have reference to judicial sentence. Corrup- 
of Blood. tion of blood is altogether abolished. -By that 
expression is meant the destruction in a person 
of every inheritable quality. The person attainted could 
not succeed to any lands that otherwise might come to him, 
nor could any person inherit through or from him. The 
Constitution allows forfeiture of estate during the life of the 
person attainted. 

The case of John Brown shows that it is possible to com- 
mit treason against a State. In October, 1859, Brown 
seized by an armed force the arsenal at Harper's Ferry; he 
then attempted to promote insurrection among Virginian 
slaves. He was tried, convicted and in December following 
was hanged. 

In the Civil War citizens of the Southern States in levy- 
ing war against the United States were merely obeying the 
decrees of their various commonwealths. In 
Citizens of this they were guilty of treason against the 
the South. United States. On the other hand, if they had 
borne arms for the Federal Government against 
their respective States, they would have been guilty of 
treason against the seceding commonwealths. This point 
of view is clear enough: the ordinances of secession, it was 
claimed, took the States out of the Union. The people of 
those commonwealths, therefore, no longer owed allegiance 



THE JUDICIAL DEPARTMENT 127 

to the United States and therefore could commit no treasoD 
against what remained of the old Union. Outside the limits 
of the Confederate Slates it was generally, though not uni- 
versally, held that the ordinances were of no effect to take 
those States out of the Union. Their hostile populations 
therefore were guilty of treason against the United States* 
even if thev obeyed the decrees of their own commonwealths. 



* Political science teaches that American citizens arc in reality not citizens of 
the Federal government or of the State governments, but of t lie statr (tin 
ereignty) thai lies hack of both systems of government. 



CHAPTER XIV 

THE FRAME OF GOVERNMENT 

"Full Faith and Credit shall be given in each State to the public 
Acts, Records, and judicial Proceedings of every other State; and 
the Congress may, by general Laws, prescribe the Manner in which 
such Acts, Records, and Proceedings, shall be proved, and the 
Effect thereof." (Art. IV, sec. 1, Cons, of U. S.) 

In theory the States are independent of one another, and 
the laws of one commonwealth cannot be enforced in another 

except as provided by the Federal Constitution. 
Inter-State Congress is empowered to make laws on this 
Comity. subject, and it has done so. This part of the 

Constitution, as well as the three clauses of the 
following section, was designed to promote interstate 
comity. Indeed, it is older than the Constitution, for it is 
taken almost word for word from the fourth of the Articles 
of Confederation, where, with other provisions, it was in- 
cluded "to secure and perpetuate mutual friendship and 
intercourse among the people of the different States" in the 
Union. 

Section two of the same Article declares that "The Citizens 
of each State shall be entitled to all Privilges and Immuni- 
ties of Citizens in the several States." We have nowhere 
any complete enumeration of these privileges and immuni- 
ties, and once more are compelled to seek an explanation in 
the history of the United States. Turning to the fourth of 
the Articles of Confederation, we find that 

"the free inhabitants of each of these States . . . shall be 
entitled to all privileges and immunities of free citizens in the 
several States; and the people of each State shall have free ingress 
and egress to and from any other State, and shall enjoy therein all 

128 



IMMUNITIES AND PRIVILEGES 129 

the privileges of trade and commerce subject to the same duties, 
imposition and restrictions as the inhabitants thereof respectively; 
provided that such restrictions shall not extend so far as to prevent 
the removal of property imported into any State to any other State 
of which the owner is an inhabitant." 

When Missouri applied for admission to the Onion her 
constitution contained a provision which excluded from her 
jurisdiction hoc persons of color. There were 
Privileges many slaves in thai territory and the admis- 
of Citizens, sion of free negroes, ii was feared, would tend 
jo make them restless; hence the provision for 
the exclusion of free blacks. Until her Legislature promised 
not to enforce this pari of the State constitution Missouri 
was not admitted. Prom the discussions of thai period 
(1S20) it is clear that Hie "privileges and immunities of 
citizens in the several Slates" include the righl to enter 
any State, to pursue therein a lawful calling, to leave such 
State and to remove one's property to another common- 
wealth. 

As mentioned above, this Article of the Constitution is 
concerned with the preservation of harmony among the 
States. In theory they are to dwell in the Union as help- 
ful and affectionate sisters. It is the duly of each member of 
this confederation to act courteously toward every other, and 
though this obligation might be inferred from the circum- 
stances of our origin as a distinct people, it has been pre- 
served in the fundamental law. which says that: 

"A Person charged with Treason, Felony, or other Crime, who shall 
flee from Justice, and be found in another State, shall on demand 
of the Executive Authority of the State from which he fled, be 
delivered up, to be removed to the State having Jurisdiction of the 
Crime," (Art. IV, sec. 2, cl. 2.) 



130 FRAME OF GOVERNMENT 

This provision is very generally observed. The usual 
procedure in the extradition of a criminal who has fled 
from the State in which he committed the 
Extradition, offence is to bring the matter officially to the 
attention of the Governor of that State; he 
sends a ''requisition" to the Governor of that commonwealth 
in which the fugitive is found. This official then gives per- 
mission to have the alleged offender taken out of that State. 
Governors may or may not surrender a fugitive. Sometimes 
they refuse, and when they do there is no means of compelling 
them to perform that duty. Breaches of interstate comiiv 
however, are not very frequent. If a Governor personally 
dislikes another, he may refuse to honor a requisition ; if the 
executive authority is persuaded that the alleged offender, if 
returned by him, would be in danger of being given a parti- 
san trial, he may refuse to surrender the fugitive. 

Tending toward the same end is the next clause, which provides 
that: 

"No person held to Service or Labor in one State under the Laws 
thereof, escaping into another, shall in consequence of any Law or 
Regulation therein, be discharged from such Service or Labor; but 
shall be delivered up on Claim of the Party to whom such Service 
or Labor may be due." (Art. IV, sec. 2, el. 3.) 

From the time of the earliest plans for a union of the 
English colonies in North America there have been similar 
provisions in the fundamental law. It should be observed 
that this regulation applies as well to apprentices as to 
slaves. In colonial times and in the early national period 
the services of an apprentice were regarded as very prof- 
itable, and when one escaped, a large reward was offered 
for his return. 

More interesting, and because of its history more impor- 
tant, is the question of returning fugitive slaves. In Wash- 
ington's administration a law was passed upon this subject, 



THE FUGITIVE SLAVE LAW 131 

but its execution, so far as there was any attempt to enforce 
it, attracted little attention. 

In consequence of the War with Mexico a vast territory was 
acquired in 1848. The character of this territory in the Union, that 
is, whether it should be devoted to slavery or to freedom gave rise 
to heated discussions in Congress as well as outside. Threats of 
secession and disunion were frequently made and sectional feeling 
ran high. To set at rest this agitation an agreement between the 
North and South was finally reached. Its provisions are known 
collectively as The Compromise of 1850. Its principal authors, all 
lovers of the Union, were Clay, Calhoun and Webster, and it was 
designed to last forever. The subsequent history of this celebrated 
bargain belongs to the political annals of the United States. Here 
we are concerned with only one of its provisions. The North was 
pleased to find that by this compromise the slave trade would be 
abolished in the District of Columbia and that California would be 
admitted as a free State. The South was generally satisfied to find 
that nothing injurious to the institution of slavery was done with 
respect to New Mexico and Utah; that Texas, a southern State, was 
to receive $10,000,000 for surrendering to the United States her 
claims to certain territory on the upper Rio Grande River, and also 
for giving up to the Federal Government her custom houses and 
other sources of revenue. But the South was still more interested 
in the new Fugitive Slave Law. For that section the cheerful 
enforcement of this measure had the chief interest. As soon as 
Southern slave owners or their representatives went into Northern 
States to recover their runaway slaves there was trouble. The 
people of the free States were opposed to the return of escaped 
negroes, and in many Northern States laws were soon passed that 
made it difficult for an owner to take back his slave. This was a 
violation of the Compromise of 1850, but it was in agreement with 
the feelings of many people in the free States. When a master or 
his attorney obtained possession of a fugitive slave, it was almost 
impossible to take him South. In the case of Anthony Burns, cap- 
tured in Boston, it required the police force of the city, some com- 
panies of militia and battalions of marines from a warship in the 
harbor to get him on board ship. Burns was finally taken back to 
Virginia, but it cost the United States Government a sum estimated 
at from $80,000 to $120,000 to get him through the streets of Boston. 
It is clear that Northern sentiment made this an expensive law to 



132 FRAME OP GOVERNMENT 

enforce, and the failure of the North to live up to this part of the 
agreement was one of the causes of the Civil War. 

The framers of the Constitution were aware that there 
were vast tracts of uncultivated land on both banks of the 
Ohio. These fertile regions, they well knew, 
Room for were certain to be settled. Indeed, the Rev- 
iew States, olutionary War was scarcely ended when 
enterprising people began to make new homes 
in the rich valleys beyond the Alleghanies. It was to provide 
for such communities as might spring up in that region that 
the Constitution provided for the admission of new States. 
In 1787 few people expected the young Republic to acquire 
the vast domain beyond the Mississippi. 

"New States may be admitted by the Congress into this Union: 
but no new State shall be formed or erected within the Jurisdiction 
of any other State, nor any State be formed by the Junction of 
two or more States, or parts of States, without the consent of the 
Legislatures of the States concerned, as well as of the Congress." 
(Art. IV, sec. 3, cl. 1.) 

In 1820 Missouri was admitted into the Union as a slave State. To 
balance this the District of Maine, which had hitherto been a part 
of Massachusetts, was organized as a separate commonwealth and 
came into the Union as a free State. This was the first instance 
of a division of one of the old States. In order to effect this separa- 
tion it was necessary for the people of Maine to obtain the consent 
of the Massachusetts Legislature as well as of Congress. The erec- 
tion of Maine into a separate State had been discussed before but 
on every submission of the question to the voters of Massachusetts 
it was defeated. In 1820, however, State pride yielded to a sec- 
tional demand for another free State and, in consequence, Maine 
became an independent State. Virginia also has been divided. In 
order to do this it was necessary to obtain the consent of the 
Legislature of Virginia and of Congress. In normal times this 
could never have been accomplished, and though the erection of a 
separate State within the commonwealth of Virginia was effected in 
time of war, there are very many intelligent people who question 
the legality of some of the steps that were taken. 



DIVISION OF VIRGINIA 133 

At the time that West Virginia applied for admission to the Union 
there were ten States wholly unrepresented in either House of 
Congress. One Senator, Andrew Johnson, represented Tennessee 
until March, 1862, when he was appointed Military Governor of 
his State. A Representative from Louisiana also remained in his 
place when the delegation from his State withdrew from Congress. 
In a Congress where eleven States were unrepresented there was 
some opposition to the admission of Senators and Representatives 
from West Virginia, on the ground that no such State existed. So 
much for the consent of Congress. While it was not the same as 
the Congresses in which all the States were represented, yet it wa* 
a perfectly lawful body and its acts have been regarded as constitu- 
tional. The student should remember that all the States could have 
been represented if they so desired. 

The Constitution requires not only the consent of Congress but that 
of the State Legislature. Did the Legislature of Virginia consent 
to a division of the "Old Dominion'*? This is a very important 
inquiry, and according to one's political sentiments may be differ- 
ently answered. The facts may be briefly related. The greater part 
of the wealth and population of Virginia was represented in a 
Legislature at Richmond. That assembly was hostile to the United 
States and gave its support to the Confederate States. That body 
never gave its consent to divide the commonwealth. There was, 
however, a very considerable minority of the people of Virginia 
represented in an assembly at Wheeling, in the western counties. 
This was the Legislature that gave its consent to the creation of a 
new State. Some held that the assembly at Wheeling was not the 
lawful Legislature of all Virginia. However that may have been, it 
was the one which the United States recognized. Indeed, it could 
not recognize an assembly hostile to itself. 

Iu the admission of new States the usual mode of pro- 
cedure is for Congress to pass an "enabling act." This 

prescribes the boundaries of the proposed State, 
Enabling authorizes its people to frame a constitution, 
Act. and to elect certain officials. When these 

conditions have been complied with the State is 
admitted, if the constitution creates a government that is 
republican in form. In all cases enabling acts have not been 



134 FRAME OF GOVERNMENT 

required by Congress. None was passed in the case of Cali- 
fornia, which was admitted in the autumn of 1850. 

An Act of February 2, 1872, provided that no State shall be 
admitted into this Union "without having the necessary population 
to entitle it to at least one Representative according to the ratio of 
representation fixed by this bill." Like the enabling act an adequate 
population was not always insisted upon. Nevada, though long a 
member of the Union, has even now only a fraction of the popula- 
tion necessary for one Representative in Congress. Party consider- 
ations have often influenced the admission of new States. 

It has just been stated that when the people of a territory 
adopt a constitution and present themselves for admission 
into the Union, Congress can require 
Republican Form that the government be republican in 
of Government. form. What is "a republican form of 
government" in the meaning of the Con- 
stitution? If we regard the words in their literary sense, a 
republican form of government might be defined as one in 
which political power is vested in a majority of the people. 
Art. IV, sec. 4 of the Constitution says that, "The United 
States shall guarantee to every State in this Union a repub- 
lican Form of Government, and shall protect each of them 
against Invasion; and, on Application of the Legislature, or 
of the Executive (when the Legislature cannot be convened) 
against domestic Violence." 

It should be observed that Congress alone is not to guar- 
antee a republican form of government, that the Executive 
is not to do so nor the Judiciary. It is the United States 
that must do so: that is, the three departments. In the 
course of the Civil War when the Confederate State govern- 
ments were overthrown it became the duty of one of the de- 
partments to see thai they were superseded by governments 
republican in form. It was to this clause that both Congress 
and the President appealed, but each claimed that the work 



A REPUBLICAN FORM OF GOVERNMENT 135 

pertained to itself. Mr. Lincoln took up the task of restor- 
ing the Confederate States to their former relations in the 
Union, and, in a manner entirely his own, President John- 
son followed out the plan that had been 
Congress and adopted by his predecessor. Congress, how- 
President ever, felt thai the work of reconstructing the 

Not Agreed. Union belonged not to the President but to 
i I self. Tin's difference of opinion was one 
of the causes of Presidenl Johnson's impeachment, because 
Congress felt that he was thwarting them by bis vetoes as 
well as by other executive acts. 

One very able statesman of thai period has said thai a 
State has a republican form of government if it sup/torts the 

Constitution of the United States. In other 
Loyalty words, loyally determines whether the govern- 

1s the Test, ment of a Stale is republican in form. In some 

of the Congressional debates the principle was 
emphasized that the government of a State is republican in 
form if its Senators and Representatives are admitted into 
Congress. For the present the student musl be content with 
these explanations of the expression "republican form of 
government." 



CHAPTER XV 

POWER OF AMENDMENT 

One of the most serious defects in the Articles of Confed- 
eration was the difficulty of their amendment. In practice 
it was found impossible to alter them, for no modification 
was valid unless approved by every State. There were many 
efforts to improve the Articles but to every such proposal 
at least one State objected. It is clear thai under such a 
sysem it was always in the power of one commonwealth, 
perhaps an insignificant one, to block the way to progress. 
This experience was not forgotten by the delegates in the 
Constitutional Convention, and the document framed by 
them established what is often called the Ameri- 
Majority can principle, that is, majority rule. By the 
Rule. Constitution it is provided that a majority of 

the States may impose their wishes upon an 
unwilling minority. In fact, this has been done. There are 
amendments which certain States have never ratified. 
Nevertheless, these amendments are binding upon the States 
that rejected as well as those that ratified them. 

There are two methods of proposing amendments and also 
I wo methods of ratifying them. These are most concisely 
set forth in the Constitution if self — Article V. 

"The Congress, whenever two thirds of both Houses shall deem it 
necessary, shall propose Amendments to this Constitution, or, on the 
Application of the Legislatures of two thirds of the several States, 
shall call a Convention for proposing Amendments, which in either 
Case shall be valid to all Intents and Purposes as Part of this Con- 
stitution, when ratified by the Legislatures of three fourths of the 
several States, or by Conventions in three fourths thereof, as one 
or the other mode of Ratification may be proposed by the Congress, 

136 



A RIGID CONSTITUTION 137 

provided that no Amendments which may be made prior to the 

Vear one Thousand eight Hundred and eight shall in any manner 
affect the first and fourth clauses in the ninth Section of the first 
Article: and that no State, without its consent, shall be deprived of 

its equal Suffrage in the Senate." 

With the exceptions stated ;it the end of Article V the 
Constitution can al any time be amended. The first of these 
(imitations prevented Congress from passing any Law prohib- 
iting the importation of African slaves before January 1. 
1808. Dired taxes were to he laid not according to the mini 
ber of acres in a Stale or according to its estimated wealth 
but "in proportion to the Census or Enumeration herein- 
before directed to be taken." In other words, taxes were 
to be laid in proportion to population. 

In practice two thirds <>(' Congress have proposed amend- 
ments and the Legislatures of three fourths of the States 
have ratified them. Though the mode of 
A Rigid amendment is simple enough, vet only seven 

Constitution, teen amendments have been adopted out of the 
thousands that at different times have been 
suggested. This difficulty of amendment makes our Consti- 
tution what is technically called a rigid one. 

In 17S7 the Union consisted of thirteen States. Of this 
number nine is, approximately, three fourths. Article A' 1 1 
provides that "The ratification of the 
The Three Fourth* Conventions of nine States shall be 
Principle. sufficient for the establishment of this 

Constitution between the States so 
ratifying the same." In other words, the Constitution 
became binding when ratified by three fourths of the mem- 
bers of the Union, and that is still the rule. Amendments, 
in whichever manner proposed, become valid upon the rati 
fication of three fourths of the commonwealths in the exist- 
ing Union. It should be observed, however, that the original 



138 THE SCHEDULE 

Const it ut ion became binding upon only those States that 
ratified it. This made it possible for four of the thirteen 
to remain outside the proposed Union, and it is a well-known 
fact that two of them, Khode Island and North Carolina, 
refused at first to enter the new confederacy. 

But one Article (VI) of the original Constitution remains 
to be considered. Its first clause disclaims any purpose on 
the part of the United States to repudiate 
No its debts. The nation intended to change its 

Repudiation, political organization but meditated no act 
of dishonesty. Debts against the United 
States under the Confederation were to be as valid as ii 
incurred under the Constitution; the same is true of other 
engagements. 

The second clause of the same Article declares that "This 
Constitution, and the Laws of the United States which shall 
be made in pursuance thereof, and all 
Supreme Law Treaties made, or which shall be made, undei 
of the and. the Authority of the United States, shall b« 

the supreme Law of the Land." It furthei 
declares that the Judges in every State shall be bound b\ 
the Constitution, even if State laws or State Constitutions 
are in conflict with it. 

An oath or an affirmation to support the Constitution is 
required of all lawmakers, State and Federal, and of all 
executive and judicial officers both of the United States and 
of the several States; but "no religious test shall ever be 
required as a qualification to any office or public trust under 
the United States." 

By the schedule is meant all those provisions which facili- 
tate the transfer from the old order to the new. If the 
government under the Constitution would refuse to pay the 
debts contracted under the Articles of Confederation, every 



THE SCHEDULE 139 

creditor of the old Government would oppose the adoption 
of the new Constitution. The Schedule is a more important 
part of State constitutions. 

As the schedule is made up of only temporary provisions, 
it need not be included in the Constitution, for the same end 
could be reached by an act of the existing Legislature. We 
have now examined briefly the Preamble, the Frame of Gov- 
ernment and the Schedule. Of the grand divisions of the 
Constitution only the Bill of Rights and the Civil War 
Amendments remain to be noticed. 

As stated in an earlier chapter, there were in the Constitutional 
Convention delegates who refused to sign the new frame of govern- 
ment because it contained no Bill of Rights. Almost everywhere 
in America a Bill of Rights was then regarded as an indispensable 
part of a constitution. It was deemed necessary to safeguard the 
liberty of the people. By many influential leaders its absence from 
the Federal Constitution was pointed out as a fatal defect. Leaders 
so able as Madison and Hamilton believed that no Bill of Rights 
was necessary. On the other hand, Jefferson insisted on securing 
it. In fact, in a letter from France he recommended the adoption 
of the Constitution by nine of the States; the remaining four he 
advised to withhold ratification until a Bill of Rights had been 
added to it. Those who favored the proposed Constitution were 
known as Federalists those opposed to it were called Anti- 
Federalists. The former party yielded to the latter. 

The First Congress proposed ten Amendments, and they 
were soon ratified by the States. These amendments are 
known as the Rill of Rights. The name is 
Bill of Rights, derived from a document signed in 1689 by 
William and Mary. The people of Eng- 
land had driven out of the kingdom a Catholic king, James 
II, whom they charged with frequent violation of certain 
laws. They next invited into the country William, Prince 
of Orange, the son-in-law and nephew of James. In 1688 he 
landed in the western part of the island and soon after was 
proclaimed king. His wife, Mary, became queen. They first 



140 THE RILL OP RIGHTS 

agreed to the Declaration of Rights. The body which pro- 
posed this measure was a revolutionary body. Soon after 
it called itself a Parliament and then enacted the celebrated 
Bill of Bights. It will be found interesting to compare this 
famous document with the first eight amendments of our 
Constitution. 

In the present survey of the Constitution there is not 
sufficient space to examine separately each of these amend- 
ments. The more important may be briefly noticed. 

I. "Congress shall make no law respecting an establishment of 
religion, or prohibiting the free exercise thereof; or abridging the 
freedom of speech or of the press; or the right of the people peace- 
ably to assemble, and petition the government for a redress of 
grievances." 

In this amendment there are three distinct restraints upon 
the power of Congress. The first and the last of these limita- 
tions it has always respected. The second, freedom of speech 
and of the press, has given rise to much controversy. Toward 
the close of President Washington's second term the Gov- 
ernment was bitterly assailed by writers and speakers who 
opposed the administration. During the term of John 
Adams these attacks were kept up. Congress, therefore, 
passed a bill to restrain the authors of these 
The Sedition intemperate attacks. This was the famous 
Law. Sedition Law. Under its operation a num- 

ber of citizens were fined and imprisoned for 
their speeches and writings. A protest came from Virginia 
and another from Kentucky. The resolutions of the former 
legislature were prepared by James 
The Virginia and Madison, the father of the Constitu- 
Kentucky lion. Jefferson was the author of the 

Resolutions. Kentucky Resolutions. Both States took 

the ground that the Sedition Law, by 
abridging freedom of speech and of the press, was an evident 



VIRGINIA AM) KENTUCKY RESOLUTIONS 141 

violation of the first amendment. Writers on constitutional 

questions are now of* the opinion that this law was uncon- 
stitutional. With the remedies proposed by these statesmen 
we are not now concerned further than to observe that the 
Virginia and Kentucky Resolutions of 1798 and 1799 fur 
nished a basis for the nullification of 1832. This is one <>f 
the most Interesting and important subjects in American 
constitutional history, and for its complete treatment a 
volume would be required. This chapter can barely remark 
thai if freedom of speech and of the press mean anything, 
they give the citizen a right to examine all measures of gov- 
ernment; to praise them when they deserve commendation 
and to criticize them when they deserve censure. The polit- 
ical party responsible for the passage of the Sedition Law 
lost the Presidential election of 1800 and after the War of 
1812 disappeared as an organisation. 

The English Bill of Rights provides "That the subjects 
which are Protestants may have arms for their defence suit- 
able to their conditions, and as allowed by 
Second law." In our Constitution, Amendment II. 

Amendment, it was declared that "A well-regulated 
militia being necessary to the security of a 
free State, the right of the people to keep and hear arms 
shall not be infringed." Concerning this provision it is only 
necessaiw to observe that by the term militia is not meant 
the familiar organizations that are uniformed. 
Mil it ia armed and drilled. These bodies are known as 
Defined. the National Guards, and are found in every 
State. They comprise only a part of the militia. 
By that term is meant, in most commonwealths, all able- 
bodied male citizens between the ages of seventeen and 
forty-five years. From this part of the population mam 
States except certain classes, as for example, teachers and 
clergymen. 



142 THE RILL OF RIGHTS 

The Third Amendment has reference to the quartering of 
soldiers upon the people. It provides that "No soldier shall, 
in time of peace, be quartered in any house without the 
consent of the owner, nor in time of war, but in a manner 
to be prescribed by law." In the exciting times preceding 
the Revolutionary War "the consent of the owner" was not 
required for the quartering of British soldiers upon the 
people of Boston. They regarded the "Quartering Act" as 
one of the intolerable measures, and its enforcement con- 
tributed greatly to increasing their hatred of the mother 
country. 

The Fourth Amendment, which is concerned with search- 
warrants, or general warrants, was suggested, no doubt, by 
the Massachusetts Writs of Assistance as well as some older 
English history. It seems to require no commentary. 

The group of provisions known as the Fifth Amendment 
is not so simple. Persons accused of capital or otherwise 
infamous crimes can be tried only on a pre- 
Indictment. sentment or indictment by a grand jury. 
Naval courts and military courts provide for 
the trial of offenders in the army and navy. The proceed- 
ings of both, especially of courts martial, are familiar. 
Further it provides that no person shall be "deprived of life, 
liberty, or property without due process of 
Due Process law." The phrase due process of law has a 
of Law. technical meaning. It does not, for instance, 

in every case guarantee a trial by jury. It 
does, indeed, where a jury trial is the usual method of 
determining a case. In the proceedings in an admiralty or 
in an equity court a person may be deprived of his property 
without a trial by jury. He cannot, therefore, contend that 
he has been denied the benefits of this Constitutional pro- 
vision, for trial by jury is not the usual method in these 
tribunals. 



EMINENT DOMAIN — BAIL 143 

u Nor sliall private property be taken for public use without 
just compensation." This is nol intended t<> preveni the 
Laying of a tax, which is a portion of 
Eminent Domain, private property taken for public use. 
but has reference rather to the right of 
Eminent Domain. Under (his principle land may be taken 
for the use of si reels or highways. In time of war a com- 
mander could by reason of this righl destroy a fence or ;i 
barn for (he purpose of constructing a bridge over a stream 
that could not otherwise be crossed by his army: lie could 
take horses or wagons lor (he use of his troops. In every 
rase compensation musl be given. Some authorities go so 
far as to asser! thai under the right of Eminent Domain 
money could be taken. Cases may be imagined where in 
(he past i( would have been of considerable advantage to d<> 
this. The present system of public finance does not look to 
the exercise of this right as a source of revenue. 

Article VIII (of the Amendments! says thai "Excessive 
bail shall not be required, nor excessive tines imposed, nor 

cruel and unusual punishments inflicted." Pre- 
Excessive cisely at what point bail may become excessive 
Bail. is probably laid down in no work on law. If, 

for example, a laborer or a mechanic accused of 
crime should be required to furnish $20,000 or even {5,000 
bail, the amount might fairly be considered excessive. It 

would not be so regarded in the case of a Roths- 
Excessive child or a Rockefeller. This matter must be left 
Fines. largely to the discretion of the court. The same 

observation is true of fines imposed. In certain 
stations in life a fine of f5,000 might prove a burden during 
a long life. 

It is highly probable that the limitations in the Bill of Rights 
were intended to apply not to the several States, for their consti- 
tutions contained similar provisions, but to the three departments 



144 THE BILL OF RIGHTS 

of the Federal Government. The political history of the era imme- 
diately following the Revolution leads to the same conclusion. The 
people knew and trusted their State governments, but they could 
not foresee what the General Government might become, and what 
was more natural than an attempt to hold it in restraint? 

Concerning Amendments IX and X it is only necessary to observe 
that between our Congress and the British Parliament there is a 
profound difference. The latter, in theory at least, can pass laws 
upon all conceivable subjects, that is, its legislative power is bound- 
less, whereas that of the Congress of the United States is exceed- 
ingly limited. It can pass laws only upon the seventeen groups of 
subjects enumerated in section 8 of Article I and such additional 
laws as may be necessary to give them effect. For example Con- 
gress can borrow money upon the credit of the United States. By 
reason of this grant of power it can authorize the Secretary of the 
Treasury to borrow, say, the sum of $50,000,000. This he may do 
by offering for sale United States bonds. If it were deemed necess- 
sary to create a new office for the purpose of obtaining the money 
promptly and on reasonable terms, Congress could pass another 
law creating the new office and fixing the salary of its head and of 
as many clerks as were deemed necessary for its administration. 
As compared with the British Government, our Federal Government 
is one of very few powers. 

The preceding amendments secure to the people certain 
rights, but this is by no means a complete list, for Article 

IX says that "The enumeration in the Constitu- 
Reserved tion of certain rights, shall not be construed to 
Rights. deny or disparage others retained by the people." 

Finally it is declared that "The powers not dele- 
gated to the United States by the Constitution, nor pro- 
hibited by it to the States, are reserved to the States re- 
spectively or to the people." Amendment X. The reserved 
powers of the States is an intricate subject, and one beyond 
the grasp of school children. In another connection both 
the FOTTKTH and ELEVENTH Amendments have been dis- 
cussed. The succeeding chapter will treat of the Civil War 
Amendments, viz. Articles XIII, XIV and XV. 



CHAPTER XVI 

THE CIVIL WAR AMENDMENTS 

In December, 1865, the Thirteenth Amendment became a 
part of the Constitution. It provides that ••Neither slavery 

nor involuntary servitude, except as punish- 
Slavery ment lot- crime whereof the party shall have 

Abolished, been duly convicted, shall exist within the 

United States, or in any place subject to their 
jurisdiction." 

In an early chapter it was stand that our Constitution was of 
slow growth. As will presently appear, the language of the Thir- 
teenth Amendment was not new in 1865. On July 13, 1787, the 
Congress under the Articles of Confederation passed "An Ordinance 
for the Government of the Territory of the United States Northwest 
of the River Ohio." Of that celebrated law section VI begins, 
"There shall be neither slavery nor involuntary servitude in the 
said territory, otherwise than in punishment of crimes, whereof 
the party shall have been duly convicted." 

More than three score years later, 1848, when the southwestern 
part of the United States was acquired from Mexico, Representative 
David Wilmot, of Pennsylvania, sought to prohibit slavery in all 
that section. His amendment of an appropriation bill was a slight 
modification of section VI of the Ordinance of 1787. Though his 
famous Proviso, or amendment, failed to pass Congress, it gave rise 
to exciting debates. In the country outside it was discussed in a 
very animated way. The agitation thus occasioned was set at rest 
by the compromise measures of 1850, sometimes called the Omnibus 
Bill. 

It will thus be seen that the phraseology of the Thirteenth Amend- 
ment, which was that of the Ordinance of 1787 and also that of 
the Wilmot Proviso, was familiar to the American people in 1S65. 
Indeed, even before 1787 it was known and has since been called 
"the Jefferson interdict," because a few years before 1787 it had been 
proposed by Mr. Jefferson to prohibit slavery in the Northwest Terri- 
tory, and this was his language. This historical digression may be 
briefly summarized : 

143 



146 CIVIL WAR AMENDMENTS 

The Ordinance of 1787 (section VI) prohibited slavery in 
the territory northwest of the Ohio Kiver; the 
Ordinance Wilmot Proviso sought to prohibit slavery in 
of 1787. the Mexican cession (1850): the Thirteenth 

Amendment applies the prohibition not only 
to the entire Union but to every place that the United 
States may acquire. The Thirteenth Amend- 
Wilmot ment may therefore be regarded as the general 
Proviso, application of a principle that had long been 
familiar. 
It has been said that this amendment became a part of 
the Constitution in 1865, and it may not be perfectly clear 
to young students why, after President 
Necessity for Lincoln's Emancipation Proclamation, which 
Thirteenth became operative January 1, 1863, it was 
Amendment. necessary to adopt any amendment whatever 
upon the subject of slavery. Without at- 
tempting fully to discuss the matter it may be well to state 
two or three of the chief reasons. 

(a) Mr. Lincoln's proclamation merely set free the slaves 
in those States that were waging war against the United 
States. There were also slaves in the 
Emancipation loyal States of Delaware, Maryland, 

Proclamation not Kentucky and Missouri. Therefore slave 
Applied to all property in those States could not be 

Slave States. confiscated on the pretence that they 

were in rebellion against the United 
States (Jovernrnent. They had passed no ordinances of 
secession and were engaged in no rebellion. If the slaves 
in those Stales were to be set free, something more than a 
military proclamation of t lie President was necessary. But 
even of the eleven States that were making war upon the 
Federal Government, the whole State of Tennessee, many 



MILITARY EMANCIPATION 147 

parishes in Louisiana and several counties of Virginia were 
excepted from the Proclamation <>f Emancipation. 

(ft) Some lawyers of ability held that in the remaining 
States and parts of States the President's proclamation 

would operate to set free only those slaves 
Legal residing upon territory which had come under 

Difficulties. control of the Union Armies. To settle this 
point, that is, to put the matter beyond all 
doubt, an amendment of the Constitution was deemed neces- 
sary. 

(c) The Civil War was caused by an endeavor on one 
side to extend, and on the other to check the growth of 
slavery. By putting an end to this powerful institution 
there would be removed from the political life of the nation 
a source of grave danger. When this amendment had been 
ratified by three fourths of the States all slaves were emanci- 
pated, but for this loss to owners no compensation was made. 

Mr. Lincoln never believed that Congress had a right to 
free a single slave in any State of the Union and he never 
claimed that as President he himself had 
Emancipation, a any right to do so. It was in his capa- 
M Hit ary Measure, city as Commander-in-Chief of the 
United States Army, and as a military 
measure deemed necessary for the preservation of the Union, 
that he issued his Emancipation Proclamation. 



The Fourteenth Amendment was declared in force July 
28, 1868. Up to that date the question of citizenship was 
somewhat perplexing. There was a State citi- 
Citizenship zenship and a United States citizenship. By 
Defined. this amendment citizenship is nationalized. 

Clause 1 declares that "All persons born or 
naturalized in the United States, and subject to the juris- 
diction thereof, are citizens of the United States and of 



148 CIVIL WAR AMENDMENTS 

the Stale wherein they reside." From this provision it is 
clear that one may be born in the United States and yet 
not be a citizen thereof. That is, birth alone does not con- 
fer American citizenship. To be a citizen the person born 
in the United States must be subject to their jurisdiction. 
The child of a foreign ambassador, minister or consul, or 
of a foreigner who is merely sojourning or traveling in the 
United States, though born here is not an American citizen. 
Before the adoption of this amendment some Southern 
States had passed laws discriminating against members of 
the negro race. Other commonwealths in that section were 
expected to follow their example. The justification for the 
passage of these laws, if any existed, must be sought in the 
political history of this country during the early years of 
Keconstruction.* To afford adequate protection to free per- 
sons of color the first clause of this amendment 
Limitations further provides that "No State shall make or 
on States. enforce any law which shall abridge the 
privileges or immunities of citizens of the 
United States; nor shall any State deprive any person of 
life, liberty, or property without due process of law; nor 
deny to any person within its jurisdiction the equal pro- 
tection of the laws." 

Under the previous law the population for the purpose of 
apportioning Representatives in Congress among the various 
States was determined by adding to the entire 
Three fifths white population three fifths of the negroes 
Provision and any Indians who paid taxes. After the 
Changed. adoption of the Fourteenth Amendment all the 
negroes were counted. An important conse- 
quence of this change was to give the Southern States an 



* As commonly understood the era of Reconstruction extended from 1865 to 
1877; there was, however, before 1866 an attempt at restoring the States to their 
normal relations to the Union. 



A STRONGER SOUTH 14!) 

increased representation in one House of Congress. An- 
ticipating a Southern opposition to negro 
South Stronger voting it was provided that the basis of 
in Congress. representation in Congress should be re- 

duced in the case of any State which de- 
nied to any of its male citizens that had attained their 
twenty-first year the right to vote "at any election for ihc 
choice of electors for President and Vice 
How a State President of the United States, Kepresen- 

Can Lose tatives in Congress, the executive and 

Representation, judicial officers of a State, or members of 
the legislature thereof." If the disfran- 
chised class amounted to one-half the number of citizens 
"being twenty-one years of age," the State would lose one- 
half its representation in Congress. If the disfranchised 
class was equal to one third of the male citizens that had 
attained their twenty-first year, the State would lose one 
third of its representation in Congress, and so on. By this 
provision, however, a State could without incurring this 
penalty disfranchise its male citizens "for participation in 
rebellion or other crime/' 

The third clause, which is self-explanatory, is as follows: 
u No person shall be a Senator or Representative in Con- 
gress, or elector of President and Yice- 
Southerners President, or hold any office, civil or inili- 
Disfranchised. tary, under the United States or under any 
State, who, having previously taken an oath 
as a member of Congress, or as an officer of the United 
States, or as a member of any State legislature, or as an 
executive or judicial officer of any State, to support the 
Constitution of the United States, shall have engaged in 
insurrection or rebellion against the same, or given aid or 
comfort to the enemies thereof. But Congress may, by a 
vote of two thirds of each House, removes such disability." 



150 CIVIL WAR AMENDMENTS 

Except in the case of Jefferson Davis, President of the Con- 
federate States, the disabilities incurred by those who sup- 
ported the South were removed by Congress. 

During the progress of the Civil War it became more and 
more difficult to recruit soldiers for the Union Army. The 

expedient of bounties was early resorted to in 
Union Debt order to induce men to enlist. Moreover, those 
Not to be disabled in the service and in line of duty were 
Questioned, by law entitled to pensions. These together with 

the cost of carrying on the war amounted to an 
enormous sum. By the Confederate States similar measures 
were adopted and at the close of the war their debt was 
also great. The fourth section of this amendment has 
reference to these facts. It reads as follows : "The validity 
of the public debt of the United States, 
Southern Debt authorized by law, including debts in- 
Cannot be Paid, curred for payment of pensions and boun- 
ties for services in suppressing insurrec- 
tion or rebellion, shall not be questioned. But neither the 
United States nor any State shall assume or pay any debt 
or obligation incurred in aid of insurrection or rebellion 
against the United States or any claim for the loss or eman- 
cipation of any slave; but all such debts, obligations, and 
claims shall be held illegal and void." 



By the Fifteenth Amendment, which was declared in 
force March ."><), 1870, il is provided that the right of citizens 
of the United States to vote shall not be denied or abridged 
''by the United States, or by any State, on account of race, 
color, or previous condition of servitude." 



RESTRAINT ON THE SPA IKS 1 5 1 

When the Constitution was adopted, the Convention which framed 
it left the matter of voting entirely to the respective States. If 
there had been at that time any attempt on the 
Voting — a part of the new instrument of government to regu- 

State Privilege, late the suffrage, it is doubtful whether the Con- 
stitution would have been adopted. As it was, the 
opposition was dangerously strong. The suffrage was deemed im- 
portant, and in bestowing it there was no thought of having it 
regulated by any authority outside the different commonwealths. 
In other words, the right to vote was regarded as one which each 
State could confer or withhold at pleasure. 

The adoption of the Fifteenth Amendment was the first 
attempt to restrain the States in the matter of granting 
the franchise. After March .°>0, 1870, every commonwealth 
was free to refuse to its citizens the right to vote for lack 
of property, for lack of education, etc., bul they could not 
withhold the suffrage because of "race, colour, or previous 
condition of servitude." It is sometimes 
Race or Color said that this Amendment gave the negro 

No Cause of the right to vote. That is not strictly 

Disfranchisement, correct. It merely assured him that he 
would not be discriminated against be- 
cause of his race or color. For some years after the Civil 
War, it is true, it so operated; but great numbers of colored 
men are now disfranchised because they lack educational, 
property and other qualifications. At present there seems 
to be a tendency to leave the question of voting where the 
framers of the Constitution left it, that is, with the re- 
spective States. 

The Congress has power to enforce these amendments, 
the Thirteenth, Fourteenth and Fifteenth, by appropriate 
legislation. At the time of their adoption there was con- 
siderable opposition, and even now one sometimes hears of 
writers and speakers who advocate the repeal of parts of 
them. However, their provisions are a part of the law of 



152 NEW AMENDMENTS 

the land and are likely so to remain. By referring to the 
Constitution, Appendix B, the pupil will notice two new 
amendments, XVI and XVII, which have been recently 
adopted. 

Almost at the outset it was stated that when a student 
has a firm grasp of the Constitution of the United States 
there is still before him a large and an 
State Constitutions important part of constitutional his- 
Very Important. tory. He has still to become acquainted 

with the history and the meaning of 
the constitutions of the States. These can be examined 
just as the Federal Constitution has been in the preceding 
chapters. The student will find it interesting and profitable 
to contrast part by part the constitution of his 
Not all own State with that of the United States. In 
Alike. their large outlines the constitutions of the dif- 
ferent States are very much alike. In matters of 
detail they vary greatly. 

The following chapters will give a brief account of State 
government, beginning with the Township, the smallest ad- 
ministrative unit in the commonwealth. County govern- 
ment will then be discussed. Before considering the im- 
portant subject of State government it may not be unneces- 
sary to make a few observations upon the difference between 
the component parts of our Union and the political sub- 
divisions of other countries. 

In its origin the United States of America was composed 
of thirteen communities that had been settled by several dif- 
ferent races at very different dates. These united in order to 
gain their independence. 



CHAPTER XVII 

STATE GOVERNMENT 

The preceding chapters have been devoted almost entirely 

to an examination of the Constitution of the United States. 

In other words, we have been considering 

Importance the Federal Government, or, as it is more 

of State commonly called, the General Government. 

Governments. If nothing had been said on this subject, the 

term genera] governmenl would suggest that 

there innst also be, in our American system, a particular or 
local government. Bui this fad the student has not been 

left to infer. Almost at the beginning of these pages it was 
stated not only that each of the forty-eight commonwealths 
has a local or particular government bul thai these State 
governments are of the very highest importance, for they are 
closely concerned with the daily life of the American people. 
The General Government of the United States represents 
the forty-eight commonwealths in their relations with 
foreign powers. It attends not only to our 
Duty of interests abroad but at home it regulates all 

Federal those matters which con Id not with safety be 

Government, left to the several States. The Federal Gov- 
ernment, then, has for the field of its opera- 
tions affairs both foreign and domestic, whereas the different 
States are concerned with only those that are domestic. This 
field, however, is very important and is of very great extent. 
If the subject of State government 
State Government were as new to the student as the Gov- 
JSfotNeir. eminent of the United States nearly 

always is, it would still require many 
pages to explain it. Fortunately this is not the case. Except 

153 



1 54 STATE CONSTITUTIONS 

in the District of Columbia and in the Territories, boys 
and girls in America acquire unconsciously a knowledge of 
many useful facts pertaining to the government of the 
States, and this knowledge is not of less value because it is 
not learned from books. 

We are now prepared to begin our examination of the 
constitutions and the governments of the various States. As 
to the tirst, it may be observed that in 
Resemblance their large outlines all the State constitu- 
of State tions resemble the Constitution of the 

Constitutions. United States. Each provides for a frame 
of government, a schedule and a bill of 
rights, or something equivalent thereto. In every case this 
frame of government consists of: (a) an executive depart- 
ment whose head is a governor; (6) a lawmaking body of 
two branches, known either as a legislature or a general 
assembly; (c) a judicial system composed of inferior, 
superior and supreme courts. For the schedule there is a 
provision in every constitution. If there is not prefixed to 

each State constitution a bill of rights, there 
All have Sub- is such a bill following the constitution. In 
stance of Bill a few cases, it is true, constitutions have 
of Rights. been neither preceded nor followed by bills 

of rights. In these exceptional cases the pro- 
visions collectively known as bills of rights will be found 
scattered throughout the constitution. In other words, these 
safeguards of individual liberty are not assembled in one 
place, but are in solution in the instruments. 

In the particulars mentioned, the State constitutions are alike, 
and, as just observed, they resemble the Constitution of the United 
States. As our examination proceeds we find that in their details 
the forty-eight State constitutions are unlike one another and 
that in many respects they differ from the Constitution of the 



Tin-; township L55 

United States. What has heen said of differences in the fundamental 
law of the various States is likewise true of their governments. 
No two are precisely alike. The members of a human family may, 
and very often do, bear a strong resemblance one to another, yet 
we have no difficulty in distinguishing them. Our constitutions, 
State and Federal, belong historically to the same family. In con- 
ducting our inquiry, then, it is necessary to select some well known 
type of government. 

For greater convenience of administration every State is 
divided into "Comities" and in many commonwealths these 
are subdivided into "Townships." Within the 
Divisions of townships there are si ill smaller areas, as. 
TheCounty. for example, road districts and school dis- 
tricts. The latter being the smallest unit of 
local government, we may begin with a brief account of it. 
It has just been observed that in most parts of the United 

States the counties of each commonwealth are divided into 

townships, hi the new States, each town- 
Different Kinds ship is six miles square, or contains an 
of Townships. area of thirty-six square miles. In the old 

States, however, there is no such regularity 

in the size of townships. In fact it is difficult to find two 
townships of equal extent. Some are smaller, some are much 
larger than the uniform townships of the West. A single 
township may contain twenty, forty, sixty or more school 
districts. 

In many States the school district has authority to raise 
money by taxation, for the purpose of building and equip- 
ping, enlarging or repairing school houses. A 
The School public meeting of the voters is empowered to 
District. raise money for the maintenance of schools and 

to elect a board of trustees or school-directors. 
By these officials teachers are appointed and their salaries 
determined. One member of the board is appointed clerk. 



150 STATE GOVERNMENT 

His duty is to take annually in his own district a census 
of the children of school age; to act as secretary and keep 
minutes or records of the proceedings of the board and to 
advertise the time and place of holding 
Benefits of school meetings. In New England this 

Attendance at district school organization is more coni- 

School Meetings, plex and more important; besides the 
school-directors there are clerks, treas- 
urers and moderators. Participation by the voters in these 
school-meetings gives them confidence and skill in the man- 
agement of local affairs. 

It has been stated above that American children acquire 
almost unconsciously a knowledge of many important facts 
about government. In the District of 
Political Knowledge Columbia, for instance, they soon 
of Washington learn something of the powers and 

Children. duties of the President of the United 

States and the functions of Congress. 
In the States, on the other hand, they become at a very 
early age familiar with some of the parts of a very different 

sort of government. On their way to and 
Of Children from a country school they travel over a 
in the States, road that has been made by some agency to 

them unknown. Perhaps in a vague sort of 
way they think that it has always existed and has always 
been trodden by human feet. Those who keep these high- 
ways in repair, it is true, may be known to some or to all 
of these children, but they could not all tell who employs the 
workmen to maintain the roads or to repair the bridges. 
Their school-house, too, may have been built by unseen hands, 
but the youngest children are aware that carpenters, brick- 
layers, masons and painters keep it in repair or, perhaps, 
enlarge it. To know what authority employs and pays the 



TOWN OFFICIALS 157 

builders of highways and school-houses requires greater 

maturity of years than is ordinarily possessed by little chil- 
dren. This knowledge, too, comes by and by. There has, 
perhaps, been a change of teachers, a circumstance by no 

means uncommon in rural districts. Another teacher has. in 
some way, been appointed, and the school is conducted much 

as before. 
Overseer of 1 1 is also known to many of these children 
the Poor. that there are in their community some fami- 

lies thai are very poor, ami that these indigent 
families are assisted by a citizen who is known as an over- 
seer of the poor. They are likewise aware 
Poundkeeper. that there is another official who drives off 
stray animals and keeps them in pound until 
the owner calls for them and by the payment of a tine obtains 
their release. Children soon learn that there is 
Constable. an official known as a constable, and that he is 
possessed of considerable authority. They 
know the "squire," or justice of the peace, who issues tin' 
warrants served by the constable, gives to 
The "8qiUre" people in necessitous circumstances orders 
upon the overseer of the poor or presides at 
the trial of some inferior case. This suggests the kind of 
political knowledge possessed by country children. So far. 
then, as they are concerned not much need be said about 
Township government. The majority of school children in 
the United States, however, do not live in rural districts 
but in towns and cities. They are familiar with another set 
of officials and with a different system of government. As 
they know little of rural life, it is necessary on their account 
to say a few words more about the township. 

The origin and development of the Township, belonging as it 
does to political history, cannot be discussed here. It is sufficient 



1 58 STATE GBVBRNMBNT 

to say that it grew up in England long after the Angles, Saxons and 
Jutes invaded that country about the middle of the fifth century 
of the Christian era. By Englishmen the idea of the township 
and the government appropriate to it was brought to America when 
they settled New England. It is in that section of the United States 
that it has been carried to the highest degree of perfection. In 
those parts of the West that were settled principally by people from 
New England the township and its peculiar form of government 
has reappeared. 

THE TOWN MEETING 

In a New England township the system of government is 
very simple and very democratic. The government is com- 
posed of all the male citizens twenty-one years of 
The Town age and upwards, but as it would not be con- 
Meeting. venient for all of them directly to participate in 
government, they delegate political power to 
certain officers whom they elect in town-meeting. This 
event, the holding of a "town-meeting," occurs once every 
year, in February, March or April. For the protection of 
their own interests as well as those of the community all 
qualified voters are expected, and in early days were required 
to attend. Any one is privileged to take part in the discus- 
sion of the business before the town-meeting. 

At these meetings, usually held in the town-house, where 

there is one, measures relating to town affairs are discussed, 

and after debate adopted or rejected. In 

Business of these assemblies town officers are chosen 

Town Meeting, and taxes voted for the expenses of the 

town. The principal officials are: 

The Selectmen, varying in number, according to the size 
of the town, from three to nine. They call town-meetings, 
impanel jurors, grant licenses, and lay out highways. They 
look after the health of* the community, by taking measures 



TOWN OFFICIALS 159 

to prevent the spread of contagious diseases, by giving direc 
tions respecting sewerage, etc. If anything goes wrong, they 
listen to and consider complaints. In lawsuits they repre- 
sent the town, and in the interval between town-meetings 

they practically govern it. 

The Town Clerk is a very important officer. His duties 
correspond in some respects i<> those of the Health Officer 
in a city; thai is, he keeps a record of births, deaths ami 
marriages. He also keeps a record of the elections held in 
the town. This, of course, includes the names of candidates 
with the number of votes cast for each. As the title of this 
Official suggests, he keeps the records of the town. There 

may also he one or more Assessors <>f Tanks. These prepare 
the tax-list for the town. This office suggests that of the 
COLLECTOR, who has the authority to seize the property of 

persons refusing to pay their taxes, sell it at auction, deduct 
the amount of the assessment ami turn over the proceeds to 
the owner. Under certain circumstances the delinquent may 
be arrested and even imprisoned. In some communities the 
office of tax-collector is performed by the constable, who. 
besides serving writs, summons jurors and takes criminals 
to jail. The taxes gathered either by the collector or the 
constable are turned over to the town treasurer. 

Town Treasurer. This officer receives and keeps the 
income of the town, whether it is money derived from taxes 
or from other sources. He is required to keep a careful 
record of all receipts and disbursements. When he expends 
any of the money belonging to the town, he keeps the order 
or warrant upon which he made the payment. If, for 
example, he is directed by the overseer of the poor to pay a 
small sum to aid a poor family in the community, lie keeps 
the order of the overseer as a justification for paying out 
public money. On his own responsibility he never pays the 



160 STATE GOVERNMENT 

bills of the town, lie always acts upon instruction from the 
proper officers. 

The School Committee, it is scarcely necessary to say, is 
a very important body in the life of any progressive com- 
munity. Its members are chosen for a term of three years, 
and one third of their number is elected annually. This 
Committee is required to visit all the public schools in the 
community at least once each month and to make a yearly 
report to the town. In some communities they examine appli- 
cants for teachers' certificates and license those who fulfill 
the requirements. They also determine w r hat text-books are 
to be used. 

Besides the officers whose duties have been described there 
are many others. There are surveyors of lumber, sealers of 
weights and measures, fence- viewers, pound-keepers and 
surveyors of highways. The Surveyors of Lumber measure 
and mark any lumber that is offered for sale. The Sealers 
of Weights and Measures test the measures and weights that 
are used in trade. Only those can be used whose correct- 
ness has been verified by these officials. The Fence-Viewei s 
hear and decide disputes about partition fences or about 
walls between adjacent fields or gardens. The duties of the 
Pound-keeper have already been stated, and the duties of 
the Surveyor of Highways are indicated by the name of his 
office. It is his business to see that roads and bridges are 
kept in repair. 

In making our inquiry into the stock of political informa- 
tion possessed by boys and girls in rural districts some 
officers were mentioned and duties ascribed 
Local Govern- to them which under New England town- 
meni Differs. ship government they do not, perhaps, per- 
form. These are not contradictions. They 
are both true, but not for the same place. In the South the 



UNITS OF GOVERNMENT 161 

New England town-meeting is unknown, and the Middle 
States have local government thai differs from both. It 
should be remembered, too, that State legislatures have 
power to change local systems of government and that what 
was once a correct description may no longer We true. One 
finds local governmenment, then, changing with almost every 
geographical section of the country and if not with every 
passing year, certainly somewhat with every generation. 

There are some administrative units, such ;is the village 
and the borough, which arc withdrawn from the general 
government of the township in which they 
Village and happen to he Located. They are directly re- 
Borough. sponsible to the county, or the State. When 
their population becomes sufficiently Large 
these boroughs may be authorized to form a city government. 
This will be discussed in a later chapter. 

In the State of New York, the village government consists 
of a body of trustees, which has a president. There is also a 

village treasurer, a collector, a clerk and a 
The Village in road commissioner. The borough, gener- 
ate York. ally a community of two or three thousand 

people, is a familiar unit of local govern- 
ment in Pennsylvania. There are boroughs, however, of 

fewer than 100 inhabitants, but whether 
The Borough. small or large the borough always has its 

formidable complement of officers. There 
are several boards, as for example, a school board, a poor 
board and a board of health. There is a burgess or mayor, 
tax-collector, treasurer, secretary, chief of police, and a road 
commissioner. 

In New Jersey, rural government is generally township 
government, resembling very closely the New England sys- 
tem. There are road districts, school districts and town- 



162 STATE GOVERNMENT 

ships; there government is simple in organization and gen- 
erally efficient. In parts of the State the 
Town Meeting town-meeting flourishes as it did in early 
in New Jersey, times. Where great industries have been 
established there is town or city govern- 
ment, and, in consequence, the town-meeting has ceased to be 
as important an institution as it formerly was. 

As employed in the preceding pages the word town or 
township has been used to indicate a certain geographical 
area which may be shown on a map. 
"Toivn" Has It is well to remember also that the 

Various Meanings, term means the whole body of people 
living on that defined area and associ- 
ated for the purposes of government. By a town or town- 
ship, then, is meant not only a certain 
Town number of square miles within a particular 

Means People. county but also the organized people who 
dwell upon that area. In other words, a 
town consists of the people of the town associated in a body 
politic, or municipal corporation. This is the most impor- 
tant meaning of the word. In precise language, then, the 
town is not territory but people. 

After all that has been said in the preceding chapters, the 
student may still believe that the government is a thing 
distant and mysterious. From our 
Town Governments present investigation of the nature of 
Democratic. rural government it should be clear 

that at least in the town-meeting "the 
government" is not remote from the people, but that it con- 
sists of the plain people themselves dis- 
Representative cussing and directing the affairs of their 
Democracy own community. This system of govern- 

ment is an example of a pure democracy. It 
is admirably adapted to the management of town affairs. 



REPRESENTATIVE GOVERNMENT 163 

When there is an attempt to regulate the affairs of a county 
or State, power must; be delegated to a set of officials. This 
is representative democracy, and while it is not tree from 

objections, it is the best system thai has yet 
A Republic, been devised. By the term republic we mean 

a representative democracy, our township 
government, then, is an illustration of pure democracy, while 
the government of the larger units, as the county, the Stale. 
the United States, is each an example of representative 
democracy. The most evident observa- 
Delegated Power tion to be made concerning represent a- 
May be Abused. tive democracy is that the political 
power delegated i<» any man or any set 
of men is liable to be abused. This defect is inseparable 
from the system, but danger from this source may be con- 
siderably reduced by frequent elections, that is. by giving to 
the representative only a brief term of office. The reward 
for duty well performed is a re-election to the same office, or 
an election to a higher one. ('oust ant change or even very 
frequent change of officers, however, is not without some 
disadvantages. 

From what has been said of township government it is 
clear that the town-meeting is a legislative body: that the 

constable is an executive officer and 
Local Resembles that the justice of the peace per- 

Federal Government, forms some judicial functions. Tn 

other words, its organization corre- 
sponds roughly to that of the State or the United States 
Government. But there is a marked distinction. The 
separation of functions is not carried so far in township 
government. The Town-Meeting, for example, not only 
enacts town laws, or by-laws, but it actually performs many 
executive functions such as the appointment of minor offi- 



104 STATE GOVERNMENT 

rials and the opening of highways. In the next chap- 
ter will be discussed the relation of town government to that 
of the count}', the nature of count}' government and of some 
administrative units not so well known. 



CHAPTEB XVIII 

LOCAL GOVERNMENT 

In chapter XVI] it was stated thai though the town- 
ship is the principal unit of local government in New 
England, that is not the only section of 
Town Meeting the United States in which government 

Not Confined by town meeting is established. New 

to New England. York lias an efficient system of town- 
ship government, and so lias the neigh- 
boring Stale of New Jersey. In both commonwealths, it is 
true, there is a division of functions between the township 
and the county. It is in New England that govern- 
ment by town meeting lias been developed to the highest 
point of perfection, and though it has been 
County Chief established there from very early times, it 
Unit in South, never extended to the South. In that 
important part of the Union the county 
is the unit of local government. In Louisiana, which was 
first settled by French Catholics, the division 
The Parish, of the State corresponding to the County is 
called a parish. 
It would not be unprofitable to inquire concerning the 
origin of the town-meeting, but at this time space will not 
permit anything more than a few general 
Town Meeting observations on this interesting subject. 
Grew Up Without attempting to trace the town- 

in England. meeting back to the ecclesia of the Greeks, 

or the com it id of the Romans, it will be 
sufficient to state that when the Angles, Saxons, and Jutes 
conquered Britain they brought with them those political 
institutions with which they were most familiar in their old 

165 



IOC) STATE GOVERNMENT 

homes in Germany. In England they developed the town- 
ship, so called from the "tun," or rough fence and trench 
which enclosed it. So far as our present lights lead us it 
seems that representative government was taught to the 
Anglo-Saxons by the Koman missionaries. The influence of 
Christianity tended to instruct and to unite the warring 
invaders of Britain. Each township or village was separated 
from its fellow-township by a belt of forest-land or 
waste. The business of the clansmen dwelling within 
this enclosure was managed by a tun-gem,ote or town-meet- 
ing. In the course of time many changes came over this 
institution, and after the Norman conquest its importance 

must have been considerably reduced. There- 
The Manor, after the township was known as the manor, 

and its officers became more directly responsi- 
ble to the lord than to the people. Self-government, how- 
ever, was not entirely abolished, for the essential features 
of the town-meeting were preserved in the court leet, the 
court baron and other tribunals. In the obscure history of 
that time one thing is clear: in its 
Town Government origin as later in its highest develop- 
Democratic. ment town-government was thoroughly 

democratic. In the tun-gemote every 
warrior had a voice, just as in a New England town-meeting 
every male citizen who has attained to his twenty-first year 
can speak or vote upon questions concerning his community. 

As the clans settled into townships, so the tribes, which included 
a number of clans, generally occupied "shires" or shares of the 

kingdom. After the Norman conquest some of these 
tihires. divisions became known as counties. In England and 
Counties. Scotland they are more commonly called shires, while in 

Ireland, which was never conquered by the Anglo-Saxons 
but received its political organization from the Anglo-Normans, such 
divisions of the kingdom are invariably called counties. 



COUNTY AND TOWN 167 

In America, counties grew up naturally among the Eng- 
lish settlers. Notwithstanding their common model, how- 
ever, in the course of time the counties 
The Massachusetts developed into distinct types. We shall 
Count//. liisi describe briefly the comity as it 

exists in Massachusetts. As the town- 
ship fulfills in thai Commonwealth so important a place in 
regulating local affairs, there should be correspondingly less 
administrative work foT the county, and this is the fact. 
The organization of county govern men 1 in .Mas 
Military sachusetts is rather simple. In its origin it was 
Origin. merely a judicial and military subdivision of the 

Stale. Indeed, it was with reference to the 
courts and to the militia that the towns of colonial Massa- 
chusetts were firsl grouped into counties. 

In the preceding chapter a town was defined as consisting 
not so much oi* territory as people; but it is as people handed 
together for the purpose <>i' managing their 
Town a affairs. To conduct their business they can 

Corporation, acquire and hold property, sue and be sued 
in the courts. In other words, we were told 
thai the town is a corporation. The county also is a cor- 
poration. 11 can erect and repair the county 
County a buildings, such as the jail, the court house. 

Corporation, and, sometimes, the almshouse. It can sue 
and be sued like a natural person. 
The officers of a Massachusetts county are: The County 
Commissioners, a County Treasurer, a Sheriff and Justices 
of the Peace. There are also officers of the courts. These 
will presently be mentioned. 

County Commissioners. The County Commissioners, of 
which there are three, are elected for a period of three years. 
It is so arranged that one commissioner goes out of office 
each year. These officials represent the county in all suits 



168 STATE GOVERNMENT 

to which it is a party; they open and discontinue highways 
within the county, and apportion the taxes among the towns. 
They also erect and keep in repair the county buildings and 
have charge of the houses of correction. 

County Treasurer. Like the commissioners, the Treas- 
urer is chosen by popular vote for a term of three years. His 
duty is to receive and disburse the revenue of the county. 
This is derived in part from taxation and partly from fines 
and costs imposed by the courts. 

Justices of the Peace are appointed by the governor for 
a period of seven years. They are authorized to administer 
oaths for general purposes, to issue warrants, unite persons 
in marriage, and in petty cases to exercise criminal juris- 
diction. They may be reappointed. In some States the 
duties of the justices of the peace cover a somewhat wider 
field. 

The Sheriff is elected for a term of three years. His duty 
is to attend the county courts and to execute in every case 
the sentence of the court, whether it be fine, imprisonment 
or death. Whenever he is required, he must be present at 
the meetings of the county commissioners. He is responsible 
for the preservation of peace within the county; his duty is 
to pursue criminals and to arrest disorderly persons. In his 
efforts to preserve peace, if he should meet with serious 
resistance, he is empowered to call out the posse comitatus 
(the power of the county) ; if the disturbance is too formid- 
able for the able-bodied men of (lie county, the sheriff may 
call upon the governor for the use of the State militia. In 
case the public safely appears to require it, the governor, in 
turn, may call upon the President of the United States. It 
is scarcely necessary to add that the entire army of the 
United Stales, and, if il could be of service, the navy also, 
the militia of the Si ale and all Hie able-bodied men in the 



THE COUNTY 

county <';m be brought to bear upon an insurrectionary or 
seditious elemenl in any locality. 

Tiik Courts. The superior court holds at least two ses- 
sions annually in each county and tries civil as well as 
criminal causes. In each county there is also a probate 
court. This tribunal has jurisdiction over all matters re- 
lating to wills, to the administration of estates and the 
appointment of guardians. 

The Register of Probate, an officer elected by the people 
for a term of live years, is the custodian of the wills and 
documents relating to the business of the court. 

The Register of Deeds is elected by the people for a 
period of three years. His office preserves the records of all 
land-titles and the transfers of land within the county. 
Unless mortgages and deeds are recorded in this office their 
value is impaired.* 

It has just been observed that though they had a common 
model, the English shire, American counties developed into 
different types. In New England the township is mud 
more important than the county. In other parts of the 
United States this is not the case. When one leaves Massa- 
chusetts and begins to travel westward, he will find across 
the boundary line, in New York, a system of local govern- 
ment not less efficient, perhaps, but quite different, and in no 
part of the system of the Empire State is the difference 
greater than in the matter of county government. Tn New 
York there is a 

County Board of Supervisors. This is the law-making 
body of the county and is composed of one member from 
each town and, where the county contains a city, one from 
each ward. Each supervisor is elected by the voters for a 
term of two years, and is not only a countv officer but also 



* An interesting and sufficiently complete description of the New England 
county will be found in Tohn Fiske, Civil Government in the United States, pp. 
48-57. 



170 STATE GOVERNMENT 

an officer of his own town or city. The duties of the Super 
visors are numerous and important. They are the custodians 
of the corporate property of the county; they audit the 
accounts and charges against it and direct the raising by 
taxation of the sums necessary to pay them. They are also 
empowered to direct the raising in each town of the money 
necessary to meet its expenses. The taxes due from the tow T n 
to the State are assessed and collected by them. They can 
borrow money for the use of the county and can authorize 
a town to borrow money for its expenses; they fix the sal- 
aries of the county treasurer, district attorney and county 
superintendent of the poor. They can divide or unite towns 
and change their boundaries. Outside of cities and incorpo- 
rated villages they can establish fire districts. They are also 
empowered to erect school commissioner districts and to 
make laws respecting game and fish w r ithin the county. They 
have in addition many other duties to perform. 

The point to be noticed here is that the county has s 
supervision of the town. We have seen that each town and 
each city ward is represented in the Board of Supervisors, 
and by their control of the revenue of the various towns the 
county exercises considerable authority over their affairs. 
Besides this local legislature there are in every county very 
important executive officers. Chief among these are: the 
Sheriff, District Atorney, County Clerk, County Treasurer 
and Superintendent of the Poor. Each is elected for a term 
of three years, and most of them are agents of the State for 
the enforcement of its laws within their county. 

The District Attorney is the legal adviser of the grand 
jury and of the executive officers of the county; he is also 
within that district the public prosecutor of criminals. 

The County Clerk. As bis title implies, this official 
keeps the public records of bis county; that is, such as 
records of deeds, mortgages and judgments. He keeps a 



COUNTY OFFICIALS 171 

record of the proceedings of the county court and acts as 
clerk of the State Supreme Court when sitting within his 
county. 

The County Treasurer receives the money collected by 
the town collectors for county and State taxes and pays the 
latter to the State Comptroller. Prom this officer he in turn 
receives money raised by the Slate for the public schools of 
his county, and pays it over to the supervisors of the several 
towns. 

The BuPERiNTENnENTS OF the Poor, of which there are 
generally from one to three, have charge of the county alms 
house and report annually to the State Board of Charities. 

County Judiciary. Excepl New York County, every 
county in the State has a court for the trial of civil and 
criminal cases. Unlike the judges of the United States 
courts, who are appointed during good behavior, the county 
judges in New York are elected for Hie term of six years. 
Except murder, all ordinary crimes may be tried in the 
county court, and generally any civil suit at law when the 
sum sued for does not exceed $2,000. The county court also 
considers appeals from decisions returned by Justices of the 
Peace. 

Coroners. Four coroners, usually, though not always 
physicians, are elected by the voters of each county. The 
duty of the coroner is to investigate the causes of sudden or 
suspicious deaths; on request, they may also inquire into 
the cause of any suspicious tire. To aid him in any such 
inquiry he is empowered to summon and examine on oath 
any person whom he has reason to believe has a knowledge 
of the matter under investigation.* 

The Surrogate's Court. Each county has a surrogate's 
court. Its business is to distribute the estates of decedents 



* Except in counties which are wholly or partly in a city of the first class, the 
old institution of the coroner's jury was abolished by a State law in 1899. 



L72 STATE GOVERNMENT 

among those who are legally entitled to receive a share of 
the property and to exercise a general oversight of the prop- 
erty of minors. r l lie surrogate is chosen by the people for a 
term of six years. The county judge acts as surrogate where 
the population is less than 40,000.* 

It has been seen that the New England town-meeting is 
an example of a pure democracy, and that the government 
of a New York county is an illustration of a representative 
democracy. The New England town-meeting perforins legis- 
lative, executive and even a few judicial functions. In a 
county of New York State, these functions are separate and 
distinct. We have seen that county government in Massachu- 
setts is very different from county government in New York. 
The Virginia system, which we are now about to examine, is 
unlike both. 

Early New England had long and severe winters, a soil generally 
poor and few navigable rivers extending into the heart of the 
country. The climate of the lower Chesapeake was more genial, the 
soil more fertile and the interior of the country more easily reached 
through its navigable rivers. The people who settled New England 
belonged in general to the same class of society in England as did 
those who first settled in Virginia. In social conditions, however, 
some differences are to be noticed. New England contained few 
slaves, whereas they formed an important element of Virginia's pop- 
ulation. The "redemptioners" who were taken to New England 
appear to have found it easier to gain admission to society than did 
the "indentured white servants" and the occasional criminals who 
were brought to Virginia. It was long before the "white trash" 
melted into the class that owned plantations. These and other 
influences tended to build up in Virginia an aristocracy. In New 
England there was no class so entirely distinct from the average 
members of the community. 



* A very clear account of the New York county will be found in Civics For 
New York, pp. 70-s:5, by Charles De Forest Iloxie. 



VIRGINIA GOVERNMENT 173 

As compared with Virginia, Massachusetts was a small 
colony, but was much more thickly sett loo!. In the <>M 
Dominion, towns were few, and even to- 
Virginia (lav large towns are noi numerous in that 

Thinly Settled. Commonwealth. The plantations were 
commonly large, some of them including 
25,000, or even 40,000 acres. In these circumstances there 
was generally a considerable distance between the homes of 
planters. In a word, Virginia was sparsely settled and was 
not so well adapted 1o town-government as was New Eng- 
land, a region of small farms. 

So intersected by large rivers is the tide-water portion of 
Virginia that the planter could take his tobacco or other 
crop to his own landing; place his older with the captain of 
a vessel and wait until its return for his supply of cloth, fur- 
niture, tools or farming implements. This direct trade with 
England prevented the growth of small towns in Virginia. 
Bearing in mind, then, the distance 
No Town Meeting between plantations and the separation 
in Virginia. of classes just referred to. there was no 

town life in the Old Dominion, and this 
being the case there was no town-meeting. 

Though there was no town-meeting in Virginia, the 
Parish, modeled upon the English institution of that name, 
was an interesting unit of local government.* 
The Vestry. The authority of the Parish was exercised by 
the vestry. This was a body of twelve chosen 
or picked men. At first they were elected by the people, but 
later they were accustomed to till vacancies in their own 
number. Though it began as democratic government, it soon 
ceased to be such. The vestry apportioned the parish taxes, 
presented ministers for induction into office, named the 



* It is now generally agreed that the English parish was also the origin of the 
New England town. 



174 STATE GOVERNMENT 

church wardens and provided for the poor. With such a 
government the majority of the people had little to do. "The 
vestrymen," says Jefferson, "are usually the most discreet 
farmers, so distributed through the parish that every part of 
it may be under the eye of some one of them." 

The Court House. In the Virginia House of Burgesses 
the representatives sat not for parishes but for counties. 
There were from one to three or even more parishes in each 
county. The county court, which met as often as once a 
month, usually assembled at some central or convenient 
place. Frequently there was at this "shire-town," as it would 
have been called in England, little besides the court house, 
which was often named from the county, as Hanover Court 
House, Appomattox Court House, etc. Except in the South, 
one does not often meet towns so named. New Jersey, 
indeed, has two such places, viz., Cape May Court House and 
Monmouth Court House.* In Virginia and elsewhere the 
tendency is to drop the term "Court House" as part of the 
name. 

Powers of the Court. In old Virginia the county court 
had jurisdiction in criminal cases not involving peril of 
life or limb, and in civil suits in which the amount at issue 
exceeded twenty-five shillings. Causes of less importance 
could be determined by a single Justice. The court also 
exercised some executive functions. It appointed its own 
clerk, whose duties corresponded to those of similar officials 
in other colonies, surveyors of highways and constables; it 
also presented to the governor the names of three of its 
members, of whom one was to be appointed sheriff for the 
ensuing year. It likewise attended to the administration of 
wills; superintended the const ruction and repair of bridges 
and highways, and Computed and assessed Ihe county taxes; 
these included charges for building, when necessary, and re- 



* In Revolutionary times there was also Sussex Court House, now Newton. 



TOWNSHIP AND COUNT* SYSTEMS 175 

pairing the court house and the jail, for repairing roads and 
bridges as well as the compensation of representatives sent 

to the colonial legislature. It was this body and not the 
county court that determined the proportion of colony tax 
that was to be paid by each county. Among other duties, the 
sheriff collected both the parish and county tax. This was 
usually in tobacco, and for its proper care and disposal he 
was responsible. In other words, he acted as county treas- 
urer. He also supervised elections for representatives to the 
legislature. It was mentioned above that the county court 
presented to the governor the names of three of their mem- 
bers from which list he was to appoint a sheriff. The person 
chosen for the ensuing year was usually the senior justice. 
It thus appears that persons outside the county court had 
no prospect of holding the office of sheriff. Indeed, govern- 
ment in the parish, the county and the colony was in the 
hands of a few families. 

The County Lieutenant. Each county in the province 
was accustomed to raise a certain number of troops, and as 
a central place for instruction and drill would be incon- 
venient, the county was divided into a number of military 
districts each with its own company. The command of all 
the districts was vested in the county lieutenant. He bore 
the title of "Colonel" and was generally regarded as a sort 
of deputy-governor. 

It has been said that the town-meeting system of New 
England produced a multitude of keen and able debaters 
skilled in parliamentary law, and the state- 
Result of the nient is undoubtedly true. The Virginia 
Two Systems, system, on the other hand, by keeping the 
administration of affairs in the hands of a 
few families, developed a number of very great leaders. It 
would seem that the former was best adapted to the preserva- 
tion of civil liberty wdiile the latter favored the development 
of the genius for command. 



CHAPTER XIX 



STATE GOVERNMENT 



The preceding chapter described briefly the county of 
colonial Virginia. Under the constitution of 1002 its organ- 
ization is somewhat different. It is pro- 
A Contemporary vided that there shall be elected by the 
Virginia County, qualified voters of each county a county 
treasurer, a sheriff, a commonwealth's 
attorney and a county clerk. There are also commissioners 
of revenue for each county; these may be appointed or 
elected, as the General Assembly may provide. In a manner 
prescribed by law there are appointed a superintendent of 
the poor, and a county surveyor. There is also one super- 
visor for each magisterial district. These officials, who are 
elected by the qualified voters, constitute the county board 
of supervisors. Both county and district officers are chosen 
for a term of four years, except that there is a county clerk 
who holds office for eight years. In Virginia the General 
Assembly, or legislature, is required to provide for an exam- 
ination of the books, accounts and settlements of county and 
city officers charged with the collection and disbursements 
of public funds.. 

It has been said that there are parishes in Louisiana and 
that the parish was a unit of local government in Virginia. 

In South Carolina also there were par- 
The Pariah and ishes, though they were much more demo- 
f/ic II and red. cratic than those of the Old Dominion. 

Both Maryland and Delaware had dis- 
tricts known as hundreds, bu1 we are not now concerned 
with those interesting memorials of the past. Local govern- 
ment in the northwest, as for example in the progressive 
commonwealths of Wisconsin and Minnesota, bears so close 

176 



INITIATIVE AND REFERENDUM 177 

a resemblance to the systems described that it is not thought 
necessary to treat them separately. 



The English-speaking people have long been attached to fl 
legislature of two branches, as we see it in the British Par 
liament, in oar own Congress and in the General Assemblies 
of all our commonwealths. Hitherto tliis lias been deemed 
adequate for the popular welfare. In recent times, however, 
there has grown up a tendency to diminish somewhat the 
power of the legislature, and to give to the voters themselves 

a direct participation in the suggestion 
The Initiative and and approval of laws. This is provided 
llir Referendum. for by the Initiative and the Refer 

endum. Article V of the constitution 
adopted by Oklahoma in 1907 provides that "the legislative 
authority of the State shall be vested in a legislature, con- 
sisting of a senate and a house of representatives; but the 
people reserve to themselves the power t<» propose laws and 
amendments to the constitution and to enact or reject the 
same at the polls independent of the legislature, and also 
reserve power at their own option to approve or reject at 
the polls any act of the legislature." 

By the Initiative 8 per centum of the legal voters are 
empowered to propose any legislative measure, and 15 per 
cent, have the right to propose amendments to the constitu- 
tion by petition; every such petition must include the full 
text of the proposed measure. The Referendum may be 
ordered, with certain exceptions, either by petition signed by 
5 per cent, of the legal voters or by the legislature. Ref 
erendum petition must be tiled with the secretary of state 
of the Commonwealth within ninety days after the adjourn 



178 STATE GOVERNMENT 

ment of the session of the legislature that passed the bill on 
which the referendum is demanded. If the 
Diminished measure is approved by a majority of the 

Importance qualified electors, it cannot afterwards be 

of Legislature, vetoed by the governor. From this pro- 
vision it is clear that in the State of Okla- 
homa, where the people can both suggest and approve laws, 
the legislature is not so important a body as it is elsewhere. 
The veto power of the governor, too, is not so formidable. 

For the concluding chapters of this study there have been 
reserved two of the most important topics that can be dis- 
cussed in an essay on civil government, viz., muncipal gov- 
ernment and the duties of citizenship. When we reflect that 
more than one third of the people of the United States dwell 
in cities, the importance of the former becomes apparent. As 
law-abiding and intelligent people in a community are nec- 
essary to its healthy existence it would seem that not much 
need be said concerning the obligations of citizenship. A 
brief treatment of these topics will conclude this study on 
Civil Government in the United States. 

Foreigners visiting the United States and making a study 
of their political institutions bestow much praise upon 
American governmental systems, local 
City Government and general. From this commendation. 
Alone Inefficient, however, municipal government is ex- 
cepted. In the management of rural 
affairs the American people have been remarkably success- 
ful. Town and county government are everywhere fairly 
efficient and deserve the praise they have received. The 
administration of State and Federal Government is almost 
equally satisfactory. How, then, does it happen that in the 
government of their cities the people of the United States 
have so often failed? To this inquiry it is difficult to give 



MUNICIPAL GOVERNMENT 179 

a correcl and complete answer. At Least a partial explana- 
tion must be attempted. 

The problem of city government is really a new one for 
the American people, and when they have had sufficient time 

for its consideration it will no doubt receive 
Municipal a solution as satisfactory as have other grave 
Government questions. The town-meeting, for example, 
Is New. grew up and was perfected in early American 

experience. From the Colony it was an easy 
transition to the State. These parts of the system, then, have 
long been established ami have been slowly improving. The 
Federal system, it need scarcely be repeated, was suggested 
by the organization thai existed in most of the States at the 
time the ('oust i tut ion was adopted. But in the year ITsT 
there were in the United States almost no cities. Philadel- 
phia had at the time of Washington's Inauguration a popula- 
tion of 42,000; New York came next with 315,000 people, and 
Boston was not yvt a city. After the year 1840 the urban 
population grew rapidly and cities sprang into existence as if 
by magic. The novelty of this problem of municipal or city 
government, then, may be offered as one explanation of our 
failure in a single field. There is another reason for the 
slender success of the American people in the government 
of their cities, and that is its great complexity. In a certain 
sense it is more difficult to secure good city government than 

it is to establish national, state, or 
Municipal Government town government. Municipal gov- 
Is Complex. eminent, it is generally admitted, 

is in some aspects more complex. 
Of course the administration of the National Government is 
no easy matter and it is a familiar fact that at the outset it 
it was far less efficient than is municipal government at the 
present time. In more than one hundred and thirty years 
the administration of the Federal Government has been 



1SII STATE GOVERNMENT 

greatly improved. Are we to expect equal progress in the 

management of American cities? 
Municipal Government It may be confidently asserted that 
Improving. municipal government will exhibit 

at least equal improvement. In- 
deed, it is easy to point to unmistakable signs of progress in 
very recent years. 

After the achievement of American independence, in fact 
even before that event, people generally perceived the advan- 
tages of a distribution of political 
Separation of Powers power. In all the States there were 
a Defect. established legislative, executive and 

judicial departments. This separa- 
tion of powers was considered one of the chief merits of the 
British constitution and it was natural to imitate it. We 
have seen that this complete separation does not take place 
in government by town-meeting and it was a mistake to have 
introduced the principle into city government. 

It is scarcely necessary to add that in the details of 
their government American cities show great differences. 
There is, however, a general resemblance. 
Cities Alike There is, for instance, a legislative branch 
and Unlike, called the city council, which is often divided 
into common council and select council. In 
other words, the municipal legislature, by whatever name it 
is called, is, like the Congress and the State legislatures, a 
lawmaking body of two chambers. In recent years there has 
been a tendency to constitute the city council of one house. 
There is also an executive known as a mayor, and there is 
everywhere a Judiciary. This, of course, is a part of the 
Stale system. In colonial times there had been many and 
bitter controversies with royal governors, and the America* 1 
people seem from that experience to have acquired a fear of 



DANGBB OF BOARDS 181 

one-man power. It was not unnatural, then, to limit the 
authority of executives, whether Federal 
Mayor Stripped State or municipal. When in the course 
of His Powers, of time the mayor was stripped of his 
power, the boards of aldermen or the 
members of council found it easy to inaugurate and execute 
schemes very injurious to the public. This system attracted 
general attention when there was a marked increase in the 
rate of taxation. Further examination showed that the 
work done for the public was often marked by gross care- 
lessness. 

There have been many attempts to check the recklessness 
of city officials by a system of State supervision, but the law- 
makers of a Slate are often nm qualified 
State Supervision to deal with problems in a distant city 
Not a Cure. which, perhaps, they have never visited. 

They can neither know the Deeds of such 
a community nor the abuses which may exist in its govern- 
ment. A knowledge of local conditions is indispensable t«» 
any enlightened remedial action. "A man fresh from his 
farm on the edge of the Adi.< n lacks," says .John Fiske. 
"knows nothing about the problems pertaining to electric 
wires in Broadway, or to rapid transit between Harlem and 
the Battery.'' His consent to legislation on such subjects is 
likely to be obtained by the passage of some measure in 
which he has a nearer interest. State intervention or State 
supervision has often failed to improve municipal govern- 
ment. It did not, for instance, prevent Tweed and his polit- 
ical friends from securing the important offices of New York 
city and stealing millions of dollars from the people. The 



182 STATE GOVERNMENT 

Philadelphia Gas King conducted its operations on a scale 
much more modest. Depredations of 
One-Man Power- this sort led to a change in public sen- 
Xot So Dangerous, timent as to one-man power. Experi- 
ence had taught the American people 
that one man was not so dangerous to the public welfare as 
a gang of corrupt politicians, and there soon appeared a 
disposition to reserve a measure of power to the mayor and 
to lix upon him the responsibility for an efficient adminis- 
I rat ion of city government. We have seen that when the 
framers of the Constitution were in doubt as to whether they 
would invest the executive authority in a board or in one 
person, they decided, because of this very consideration of 
responsibility, to vest the supreme executive power of the 
United States in a President. By offering to the people the 
choice of only a few officers the city of Brooklyn, before it 
became a part of Greater New York, had an excellent system 
of municipal government. The multitude of officers elected 
in Philadelphia, Boston and New York is rather a disadvan- 
tage, and it is only a mayor of good intelligence and good 
integrity who can keep this army of subordinates in order. 
These considerations have led some political thinkers to 
recommend for cities generally government by commissions. 
The system has not been given a sufficient 
Government by trial, though where it has been adopted it 
a Commission, has been fairly successful. This again 
raises a question similar to that of the 
one-man power. Shall we, it is asked by some New Yorkers, 
place at the disposal of a few men the vast interests of our 
greal city? The advocates of city government by commis- 
sion contend that where the system has been tried it has 
been found more efficient as well as more economical. Thev 



AX EXPERIMENT 183 

further claim thai in the make-up of commissions ihe people 
will get the benefits of expert service. This 
On Trial. innovation in municipal government is as yet 
too new either to he condemned outright or to 
be adopted without further trial. Many able men familiar 
with municipal affairs do not hesitate to reject the idea. 
The present generation 1ms given much thought to the 
question of city government, and there is no doubt thai there 
has been marked improvement in municipal administration. 
As has been stated, the subject is exceedingly complex and 
a perfect system can not seriously be expected except as the 
product of time. We may be certain, however, that the 
abuses of the p;ist are aot so likely to reappear. 

The ignorant foreign vote in large cities is for some people 
a satisfactory explanation of the failure hitherto to have 
devised a better system of government for 
The Foreign American cities. Those who have invest i 
Vote. gated this subject, however, and who are com- 

petent to speak with authority are much more 
inclined to place the responsibility upon native real estate 
speculators. It has been shown, too, that 
Speculator*. some of the most corrupt communities have 
had the smallest proportion of foreign-born 
citizens. From whatever element it comes, the ignorant 
vote can scarcely ever fail to do harm. It has 
A Restricted been proposed to return to a restricted 
Suffrage. suffrage, though it is not probable that such 

a step will be taken, for political scientists 
well know that there is not a little danger in a restricted 
suffrage. It is not wise to introduce into the State a dis- 
contented element. The disfranchised would soon connect 
their poverty or their lack of social position with the absence 
of the right to vote, and in the hands of demagogues they 
would become, whether they were of native or of foreign 



184 STATE GOVERNMENT 

birth, a dangerous element. Thomas Jefferson, our greatest 
political thinker, did not favor a restricted suffrage. 

It is certain that far more harm is done by blind allegi- 
ance to a political party than by the votes of ignorant 

citizens. Upon the foreign policy of the 
Blind Allegiance United States men may well differ in 
to a Part y . opinion. As to its domestic policies 

complete agreement is hardly possible. 
Men equally intelligent may hold different views concerning 
a protective tariff. The wisdom or the desirability of making 
internal improvements at National expense once divided and 
still divides the American people. The idea of Federal grants 
to steamship companies has its advocates and its adversaries. 
In our experience there have often been discrepant opinions 
concerning monetary legislation. On questions of this 
character differences of opinion are to be expected. These, 

however, are not the questions that 
Municipal Questions arise in the government of a city. 
Not Party Questions. Though men are accustomed in city 

elections to act with this or with that 
political organization, they have identical opinions as to the 
benefits of well-paved and clean streets, an efficient system of 
education, an abundant supply of good water, etc. Why, it 
may be asked, do they in municipal elections support one 
party rather than another? The answer is evident. In order 
to retain control of the National or the State government it 
is believed that there must exist in city, town and county 
an efficient organization. When a political party gains con- 
trol of all the offices in a city it is able thereby to persuade 
its supporters to vote the State and the National ticket of the 



CITY ELECTIONS 185 

party. From the point of view of the party machine, then, 
party lines should be pressed in 
Independent Voting municipal as well as in State and 
in City Elections. National elections. In the opinion of 
intelligent voters unconnected with 
the machine no such loyalty to party is deemed necessary, 
and in city elections there should be complete independence 
in voting. 



CHAPTER XX 

RIGHTS AND DUTIES OF AMERICAN CITIZENS 

To know the history of our Federal Constitution and the 
meaning of its provisions is a splendid accomplishment, but 
it is not of greater value than a knowl- 
Knowledge of edge of the rights and duties of Ameri- 

Rights and Duties can citizenship. Because of its impor- 
Importaut. tance this subject has been reserved for 

the final chapter, though on that very 
account some writers on Civil Government would give it the 
first instead of the last place. In this study its position has 
been determined by the amount of knowledge supposed to be 
possessed by those for whom it is intended. In our grammar 
schools, and even in institutions of a higher grade, students 
know almost nothing of foreign governmental systems. Of 
course they know something about their own, and this knowl- 
edge is increased by a careful study of our political institu- 
tions. Indeed, the latter cannot be fully understood without 
some acquaintance with European and other foreign systems 
of government. When the pupil is in possession of this 
wider knowledge, it is believed that he can then consider with 
profit some of the fundamental ideas of political science and 
some of the more important questions of practical politics. 
The discussion of the rights and duties of American citizen- 
ship, then, has not been accidentally overlooked but has been 
reserved for this place by design. 

Among other subjects our first chapter discussed the terms 
nation, government, and state. The last was described as 
the highest human authority acting on a given population. 
This definition will presently be treated at greater length. 
For many young students the conception of the state is not 
\orv clear. They find it difficult to imagine a power higher 

186 



FUNCTION OF CONSTITUTIONS 187 

than the government. Perhaps a new presentation of this 

subject will better enable them to grasp the idea of the stale. 

From what has been said in the preceding chapters it 

should be clear that our State governments as well as the 

Federal Government arc restrained by 
Governments an authority higher than themselves. 

/{(.strained The governors, the legislatures and the 

by Constitutions, commonwealth courts are kept within 

certain bounds by their various constitu- 
tions and by the Constitution of the United states. The 
President, the Congress and the Federal courts are restrained 
by the Federal Constitution. Constitutions are therefore 
superior to the magistrates thai make up our governments, 
but these constitutions were themselves made by the people. 
Under our system the people are the Bource of all political 
power. They can make constitutions, alter them or com- 
pletely change them. In doing this they are accustomed to 
act through conventions. 

In a former chapter it was said that the township is nut 
so much land as it is people. A state, too, is people quite as 
much as it is territory. We use this term in 
The Term three different senses. We employ the term 
Stair. state to mean territory, government, or people. 

When we say that Texas is the largest State in 
the Union, we think only of its area. When we say that 
Maine is a prohibition State, we mean that its government 
forbids the sale of liquor. If it is said that Oklahoma 
adopted a constitution in 1907, Ave think of it as an act not 
of the land, which would be absurd, or of the government, 
but of the people. In the United States the word common- 
wealth or state suggests some one or more of these ideas. 



188 RIGHTS AND DUTIES OP AMERICAN CITIZENS 

The political scientist, however, knows France, Germany, and 
Italy as states. The members of our 
Our Commonwealths Union are not states in this sense, 
Are Not States. for they do not possess complete 

sovereignty. For this reason some 
writers prefer to call them commonwealths. It is the States 
united that constitute the same sort of political society as 
the United Kingdom of Great Britain and Ireland or France. 
The people of the United States, together with their dual 
system of government, form the state. But it is the people as 
a body politic — the people organized for defence and for the 
general welfare. 

To have a state, then, it is necessary to have: (a) a body 
of people socially and politically united; (6) a body of 

magistrates or officials who have charge of the 
Notions of political machinery that we call government, 
the State. and (c) a body of customs or maxims to guide 

both magistrates and people. These customs or 
rules may be written, as the Constitution of the United 
States, or they may be partly written and partly unwritten, 
as the constitution of Great Britain. To be a state it is nec- 
essary that a community be absolutely independent of all 
other political communities, in fact, as independent as if 
there was no similar society in existence. The people of 
Afghanistan are a distinct race; they have laws, customs, a 
language and a government of their own, but they do not 
form a state because their foreign relations are regulated in 
certain particulars by Great Britain. The people of the 
state must, of course, have territory. 



IMPORTANCE OF FAMILY 189 

In this large society called the state there are many 
smaller ones. The most interesting, the most natural and 

the most important of these is the family. A I 
The Family, different stages in the world's history the 

family has been differently organized. It is 
the basis of the tribe and the nation. It' the members of 
every family in a particular town were ignorant and vicious 
and poor, it is plain thai snch ;i community 
Importance of would not be a progressive one. No useful 
the Family, institutions would be established therein 

and it would have no inclination or ability 
to assist other towns. Among such a people no schools would 
be maintained, no libraries or churches would be founded. 
Even if snch institutions were established by some external 
influence, they could not flourish or continue long to exist in 
an ignorant and vicious community. If every social unit in 
the state were of the character of that described, the state 
would not be progressive, but within its borders civilization 
would turn backward. The welfare of the state, then, is 
inseparably bound up with that of the family, and any in- 
fluence that tends to impair its virtue, intelligence or pros- 
perity is an evil one. This is why religion is so concerned 
with domestic life. Its ministers realize that the family is 
the school of nearly all the virtues. It is in the bosom of 
fhe family that each of us first learns obedience; it is there, 
too, that we learn self-sacrifice, and love. These virtues are 
enjoined in the school and further continued by the church. 
If the duties of religion are not practiced in the home there 
is great danger that their exercise 
Duty of State may be permanently neglected. It is 

to Improve Citizens, the object of the state to improve the 
social efficiency of its citizens and of 
the church to improve them in a spiritual way. Before the 
Christian states of the world had become as enlightened as 



190 RIGHTS AND DUTIES OF AMERICAN CITIZENS 

many of theui now are the Church was the great agency, 
indeed it was almost the only one interested in preserving 
and making more perfect the life of the family. If, then, the 
unity and virtue of the family is so important, and this will 
not be denied, it is imperative upon the state to guard the 
home. In different ages it has been threatened in different 

ways, but in recent years the greatest menace to 
Divorce, the unity of the family is the matter of divorce. 

If this concerned only the husband and wife who 
are separated by law, it would not be so grave an evil, but 
children are very frequentty, and society is always affected. 
In permitting the institution to exist the state is uncon- 
sciously weakening itself for the trials of the future. These 
have come and they are bound to come again. Under our 
system the majority rules, and it is this majority that has 
enacted the laws regulating divorce. If, therefore, there is 
no reasonable expectation of obtaining the repeal of all 
divorce laws, it is still possible to 
Difficulty of work for their improvement. Per- 

Obtaining Desirable, haps the first step toward any im- 
provement of the present practice in 
the matter of granting divorces will be to make them more 
difficult to obtain. When divorces cease to be so common 
as they now are, the social improvement then noticeable may 
encourage good citizens still further to curtail the granting 
of such decrees. 

Our first chapter discussed also the term citizen and 
showed that in ours as in every other country the people may 

be divided into two classes, viz., (a) citizens, 
Aliens. (b) aliens. In other words, we have in the 

United States persons who owe allegiance to 
its government and persons who owe allegiance to foreign 
governments. The democratic theory is that all citizens 



CIVIL BIGHTS — POLITICAL BIGHTS 191 

are equal in the eye of the law. This, however, is 
nol strictly correct, for naturalized citizens do 
Citizens, not enjoy all the rights of aatural born citizens. 
They are, for example, excluded from certain high 
offices. It is well known that we deny to women certain 
privileges and that they do not owe the same obligations ;i- 
men. Excepl in four western states they do not vote in all 
elections. They do not owe military service in any of our 

commonwealths. 

Civil Right 8. Legal rights may he divided into i <i i civil 

and (b) political. The former are concerned 

with the protection of life and property; by the possession 

of the latter a citizen is enabled to take part in government : 

for example, he can \<>!e and hold office. 

Political Rights. The right to sue in the conns is a 

civil right, while the right to hold 

office is a political right. 

In the first chapter it was stated that a citizen may travel 
in foreign countries and while so doing is entitled to the 
protection of his own government. He has at 
Rights of home a right to full life: that is, he is entitled to 
Citizens. protection for his life and for every useful pari 
of his body. In other words, the state must 
guarantee him the protection of limb as well as life. The 
state, too, must assist him in safeguarding his property, and 
this is a wider term than lands or houses. He may. for 
instance, be entitled to inherit. Such inheritance is secured 
to him by law. In a precediug chapter it was stated that a 
citizen of one common w r ealth has a right to enter another, to 
follow therein any lawful occupation or profession, to 
acquire and dispose of property while residing in such state. 
Patents and copyrights secure to him his intellectual prop- 
erty. He is entitled to use, though he may be punished for 
abusing the mails. Under certain regulations he can use the 



L92 RIGHTS AM) DUTIES OP AMERICAN CITIZENS 

navigable waters of the United States. If he prefer to dwell 
permanently in a foreign country, the law of the United 
States recognizes his right <o denaturalize or expatriate 
himself. These and many other rights that might be men- 
tioned are fundamental and they have long been enjoyed. 
There are other rights that have resulted from the develop- 
ment of democracy. Citizens expect that the state will 

establish elementary schools for them. On this 
Duties of point there is considerable agreement. There 
the State. is not, however, equal unanimity as to the duty 

of the state to establish high schools and normal 
schools. Many citizens hold that in offering instruction in 
the very elements of knowledge the state does its whole duty. 
At the present time there is scarcely any opposition to the 
establishment of schools for technical instruction. The Con- 
stitution of the United States, as we are told in its preamble, 
was ordained, among other things, to promote "the general 
welfare." In this is suggested the entire matter of develop- 
ment. It is because it broadens life that education is so 
favorably regarded. But citizens expect more of the state 
than is implied in the offer of elementary instruction. They 
want highways, protective tariffs, and irrigation. They ex- 
pect the benefits of agricultural experiment and a system 
of banks that will insure a reliable means 
Duties of State of exchange. From what has been said it 
Increasing. is scarcely necessary to add that the func- 

tions of the state are becoming more 
numerous. Some commonwealths provide homes for afflicted 
citizens, as, for example, those suffering from epilepsy. It 
is doubtful whether even so late as half a century ago any 
of our states made provision for its epileptics. 

In addition to (he civil and the political rights enjoyed 



ETHICAL [DEALS 193 

by American citizens one hears oftentimes aboul "the right 

to work," the "right to a Living wage," etc. 
The"Right These express certain economic and ethical 
to Work" ideals and in time they may In* embodied in 

the law. They arc what some would call 
"natural rights" but they are ao1 the rights «»f* American 
citizens discussed in the preceding pages. They must firsl 
be recognized by the law. In America the tendency of the 
laws is to give to every citizen the utmost liberty consistent 
with the rights of others. A man, for instance, may speak 
freely on a greal variety of subjects imt this does nol justify 

his resorting to libel or to slander. The "free- 
Violence dom of speech and of the press" guaranteed by 
Not Legal, the Constitution of the United States does not 

extend to an approval of* violent methods in 
seeking to improve or to change the policy of government. 
A citizen may worship as he pleases, but the law will not 
uphold him in immoral practices. Its treatment of the 
Mormons is a case in point. A very good summary of the 
legal rights of American citizens will be found in the 
amendments of the Constitution of the United states. Bui 
it need hardly be observed thai those seventeen articles 
do not include all our legal rights. In other words, the 
enumeration is not complete. From what has already been 
said it is clear that any adequate treatment of the subject 
of civil and political rights would require a volume instead 
of a chapter. The most that we can ex peel to do, then, is 
to suggest the nature of the subject. A few words con- 
cerning the duties of citizenship will conlude this brief study. 
During the Middle Ages the Feudal System was generally 



104 RIGHTS AND DUTIES OF AMERICAN CITIZENS 

established throughout western Europe. It seems to have 
grown up out of the military necessities of 
Leading Ideas the times. Its leading ideas were protection 
of Feudalism, and obedience. A powerful baron or lord 
promised protection to those who would sub- 
mit to certain conditions which he always imposed. Any 
defenceless person by getting down on his knees and taking 
an oath of homage, an oath of fealty and submitting to the 
ceremony of investiture became the man or vassal of the 
lord. The chief duty of the latter was protection ; while 
that of the former was obedience. Upon assuming the three 
obligations of homage, fealty and investiture the vassal or 
tenant bound himself to do certain things, viz. : To render 
yearly so many days military service, to contribute toward 
the ransom of his lord if the latter were captured by an 
enemy; also to offer gifts when the lord's oldest son was 
knighted. When his own son succeeded to the estate a fine 
was paid. At a later stage if the vassal wished to be ex- 
cused from military service, he was required to pay a fine. 
Indeed, almost every important event in the life of the lord 
was made a pretence for imposing a fine 
tit ate Requires upon the tenant or vassal. For all this 

Allegiance; the baron or lord promised, and so far 

Gives Protection, as he was able to do so, gave protection. 
In modern times, too, the citizen owes 
obedience or allegiance not to any baron or lord but to the 
State, and the State gives him protection of life and prop- 
erty. In return for such protection the State expects and 
requires allegiance and fidelity to itself. This duty may 
take the form of military service. In theory every citizen 
may in an emergency be called upon to serve in the army. 



[MPAIRMENT OP JURY SYSTEM 195 

In practice, however, only the able-bodied men are required 
to enlist as soldiers. The Suite, too, some- 
Jury Service, times requires of its citizens civil service. 
An example of this is seen in service on juries 
and from it no one is exempt. Judges, indeed, often excuse 
those whose names are drawn. Many people endeavor to 
avoid this duty. From this cause juries are often composed 
of the most ignorant and selfish men in the community. 
Professional men, lawyers, teachers and clergymen, often 
ask the judges to excuse them. Merchants also fear that 
their business interests might be injured by their absence 
while serving upon juries. It is not uncommon to hear our 
jury system severely criticised. Thai it is not better is 
clearly the fault of the more intelligent citi- 
Juries Could zens who instead of performing a plain duty 
Be Easily evade it and thus leave juries, grand and 

Improved. petit, to be filled by the less intelligent mem- 

bers of the community. The present jury 
system is far from being perfect but if citizens willed it, 
the results could be made much more satisfactory. The 
State, too, could require civil service from its citizens. In- 
deed in rural communities citizens are compelled to work 
on the repairs of the highways. Of course they would be 
excused from such labor by ottering a money payment. It 
is in the power of the State to command the services of its 
citizens in civil as well as in military duties. As nearly 
all civil offices are salaried ones, no one is compelled to 
serve. Indeed, for every such office there are always many 
applicants. 



IDG RIGHTS AND DUTIES OF AMERICAN CITIZENS 

In the Civil War the United States 
County, State, Government required the services of mil- 
Xation May lions of men. In case of insurrection 

Require Service, each State can call out its able-bodied 
citizens to restore order, so also may each 
county to suppress smaller outbreaks. 

In theory the State can call out every citizen for military 
service, so also is it empowered to take every dollar in 

taxation. If, however, the State called all its 
Power of citizens into the field, there would be no body 
the State, of men at home to feed, arm and equip such 

soldiers. Hence the government never requires 
military service of all its citizens. Though in theory it 
could take all of one's property in taxes, it would not be 

prudent to do so, and no wise administration 
Taxation, would even think of attempting it. The student 

should remember that the taxpayers have a great 
deal to do with the election of the officers of government. 
By adopting an unwise or burdensome system of taxation 
the officials would be almost certain to fail of re-election. 
The levying of taxes is a very delicate and a very intricate 
subject and the failure to adopt wise systems of taxation 
has led to the dismemberment of empires and the overthrow 
of dynasties. An unwise system of taxation adopted by the 
British Parliament led to the successful revolt of the Ameri- 
can colonies. Too much taxes produced the terrible Revolu- 
tion in France. This brief sketch will suggest some of the 
rights and duties of American citizens. 

Divorce has been mentioned as a menace to the existence 
of a lieal thy Slate. The failure of the natural leaders of 
society to perforin jury service has been noticed because of 
its impairment of the worth of an ancient and excellent 
institution. The intelligent members of a community might 



THE RECALL 1!>7 

well l>e pardoned for their indifference to jury service if 
thai \\ns their single fault. They appear to be not less 
indifferent to questions of municipal administration. Ii 
has already been remarked that our governments, State and 
Federal, are on the whole very well administered, but that 
our cities are nol so well governed, or course there are manj 
exceptions. Thai our cities are not satisfactorily ruled is 
evident from the presenl tendency to substitute for the 
mayor a commission. This device is comparatively new and 
therefore its merits have no1 been sufficiently tested. There 
is no doubt that it possesses advantages bul it also has 
limitations. 

Another proof that our municipal or city governments are 
not satisfactory is the suggestion that an unsatisfactory ex- 
ecutive should be recalled to private life. In 
The Recall, this connection but a single observation ap- 
pears to be required. It matters little whether 
we live under the system of a single city executive, gover- 
nient by a commission, or whether we insert in our laws a 
provision lor recall, municipal government is doomed to 
failure unless the citizens themselves, espe : 
Remedy in cially the more intelligent, are active, vigilant, 
the Citizen, and incorruptible. Every citizen should par- 
ticipate in the choice of city officials and should 
endeavor to bring about the punishment of the giver as well 
as the taker of bribes. If he is careful in the selection of 
municipal officers they will be less likely to be parties to 
any of those questionable transactions com- 
Form of Gov- prehended by the name "graft". It does 
ernmentNot not matter much what may be the form of 
80 Important, city government, no form is automatic, but 
every one of them requires the enlightened 
guidance of vigilant citizens. T»nt watchfulness alone is not 



198 RIGHTS AND DUTIES OF AMERICAN CITIZENS 

sufficient. Under our democratic system it is not less the 
duty of exevx citizen to be educated. We need not in this 
place inquire what education is of most value. All that 
need be said is that whatever sciences he may know every 
adult citizen should at least be familiar with our political 
system. Finally it should be remarked that intelligence 
counts for little, if character be lacking. 



SPECIMEN REVIEW QUESTIONS ON EACH CHAPTER 

OX INTRODUCTION 

1. What is said concerning the name of this subject? 2. Can thprp 
be government other than civil government? 3. What is the funda- 
mental idea in the word constitution? 4. Distinguish the terms 
nation, state, and government. 5. How does Aristotle classify states? 
6. Define the terms inhabitant, citizen, voter. 7. Are most of the 
women and children of the United States citizens? 8. What is the 
source of all political power in the United States? 9. Tell what you 
know of the differences between the Artiele.s of Confer], ration and 
the present Constitution of the United States. 10. Are the State 
constitutions of any importance? 

chaptkr n 

1. What great event dispersed Italian navigators among the mari- 
time nations of western Europe? 2. What five powers claimed parts 
of the Atlantic coast of North America? 3. Is England's greatness 
a result of the revolt of Luther? 4. What was the scene of French 
activity in exploring and colonizing? 5. What state was first settled 
by Swedes and Finns? 6. What country was embraced under the 
name Acadia? 7. What was Louisiana and what was Canada? 

8. Name the three principal campaigns of the Revolutionary War. 

9. What was the attitude toward the United States of the principal 
powers of Europe? 10. What led to the formation of the league 
known as the United Colonies of New England? 

CHAPTER III 

1. Was the consideration military or economic which, in 1666, 
brought about an agreement among Maryland, Virginia and Carolina? 
2. What was the first meeting of the North and the South to attain 
a common object? 3. What was the motive for the plans of union 
between 1689-'97? 4. Who were the Lords of Trade and Plantations? 
5. Prepare a brief outline of the Albany plan of 1754. 6. What was 
its fate? 7. What is the significance of the Stamp Act Congress? 
8. Describe foreign relations (after 1783). 9. What were the con- 
troversies among the States (between 1783 and 1789)? 

199 



200 CIVIL GOVERNMENT 

CHAPTER IV 

1. When and where did the Constitutional Convention meet? 
2. When did it finally adjourn? 3. Did all the delegates sign the 
proposed Constitution? 4. Who presided in the Convention and who 
were the best known members? 5. What were the chief plans before 
the Convention? 6. What was the strongest argument against the 
Articles of Confederation? 7. What were the members empowered 
by their credentials to do? 8. On what plan did the commissioners 
base their work? 9. What was made the chief ground of opposition 
to the Constitution? 10. What was the Federalist? 

chapter v 

1. What are the principal parts of the Federal Constitution? 
2. Why is the Preamble important? 3. What gave effect to the Frame 
of Government prepared by the Philadelphia Convention of 1787? 
4. What was emphasized in the Preamble of the Constitution of the 
Confederate States of America? 5. Discuss secession as a Consti- 
tutional remedy. 6. Discuss the elements of novelty in the Consti- 
tution. 7. Before July 28, 1868, how was population ascertained for 
Federal purposes? 8. What three sorts of functions are performed 
by the United States Senate? 9. Define the term impeachment. 

CHAPTER VI 

1. What is the American idea of impeachment? 2. How many civil 
officers have been convicted under this process? 3. Do you regard it 
as efficient? 4. Under what law and in what manner are United 
States Senators chosen? 5. Explain the long and the short sessions 
of Congress. 6. What is an executive session of Congress? 7. What 
was the Joint Committee on Reconstruction? 8. Why was General 
Washington not inaugurated on March 4th? 9. How does the present 
system of compensating Congressmen differ from that which existed 
under the Articles of Confederation? 

CHAPTER VI r 

1. What limitation is placed upon the power of the Senate in the 
matter of originating bills? 2. What two kinds of powers does Con- 
gress possess? ?>. What is a tax, and upon what may taxes be levied? 
4. For what purposes does the Constitution confer upon Congress the 
power to lay and collect taxes? 5. What is a Government bond, and 



REVIEW QUESTION 8 201 

why is it exempt from State taxation? 6. Is there any species of 
commerce which Congress cannot regulate? 7. Give an illustration. 
8. What are two important elements of commerce? 9. Have the 
several States any share in the regulation of commerce? 10. What is 
meant by the police power of the States? 

(II kPTEB viir 

1. What foreign peoples have become citizens of the United States 
without being naturalized? 2. What territory has been acquired for 
the inhabitants of which no provision as to citizenship has yet been 
made? 3. What races can be naturalized? 4. If State courts may 
grant citizenship to aliens, from what source do they derive the 
power so to do? 5. What are the two Important elements in a 
bankruptcy law? G. What is a legal tender? 7. What construction 
have the courts given to the phrase "to coin money and regulate the 
value thereof"? 8. What is the status in the United States of the 
Metric System? 9. Is a post office in the legal sense always a build- 
ing? 10. By what systems of laws may the intellectual property of a 
citizen be secured? 

( 11 kPTEB IX 

1. What is piracy, and what is the attitude of civilized states toward 
it? 2. In what respect does a privateer differ from a pirate? 3. What 
is the meaning of the term felony? 4. What is the law of nations? 
5. As used in the Constitution, what is the significance of the ex- 
pression "high seas"? 6. State the important principle involved in 
the Whiskey Insurrection. 7. Why did anti-slavery societies petition 
Congress to abolish involuntary servitude in the District of Colum- 
bia? 8. Explain the phrase "necessary and proper." 9. Discuss the 
Writ of Habeas Corpus. 10. What authority can suspend its privi- 
leges? 

CHAPTER X 

1. What proof is there that slavery was recognized by the Consti- 
tution? 2. Define "bill of attainder," "bill of pains and penalties," 
"eae post facto law." 3. Why does the Constitution prohibit Congress 
from taxing exports? 4. Besides the express limitations upon the 
power of Congress are there any others? 5. Discuss secession with 
reference to the constitutional provision. 6. Define a contract. Dis- 



202 CIVIL (GOVERNMENT 

cuss the Dartmouth College case, and state why the action of the 
State legislature of New Hampshire impaired the obligation of the 
existing contract. 

chapter xr 

1. Why does the Constitution vest the chief executive power in one 
person rather than in a commission? 2. Do the people vote directly 
or indirectly for a President? 3. Describe the successive steps in the 
election of a President. 4. What authority do the States possess 
over the mode of appointing Presidential electors? 5. State the 
principal changes made by the XII Amendment. 6. Does either the 
House or the Senate in any contingency elect a President or a Vice- 
President? 7. What was the Electoral Commission? 8. Discuss the 
question of "a third term." 9. What nominating methods preceded 
the National Nominating Convention? 10. State the provisions of 
the Presidential Succession Act. 

CHAPTER XII 

1. What is a minority President? 2. Explain how a President can 
receive a majority of the electoral votes and yet receive a minority 
of the popular vote. 3. How can the electoral vote of a State be 
divided between candidates of opposing political parties? 4. How 
does the Constitution safeguard the independence of the President in 
the matter of compensation and of the veto? 5. What makes the 
executive so much greater a factor in the National Government than 
the Congress or the Judiciary? 6. In the actual administration of 
government which is more efficient — the absolute negative on legisla- 
tion of a British sovereign or the veto of an American President? 
7. What is a pocket veto, and is it in perfect harmony with the Con- 
stitution? 8. Is the President obliged to consult his cabinet or to sub- 
mit to their advice? 9. In what accessible document can one find an 
account of the organization and functions of the Executive Depart- 
ments? 

chapter xin 

1. What Article of the Constitution introduces this chapter? 
2. What court is mentioned in the Constitution? 3. Has Congress 
any authority in the establishment of a Federal Judiciary? 4. What 
important matters are beyond the control of Congress? 5. What 
difference exists between most of the State Judicial systems and that 



REVIEW QUESTIONS !'•»•» 

tff the United States? 6. Describe the organization and the distribu- 
tion of U. S. District Courts. 7. Discuss the other Federal courts in 
the same manner. 8. What is said of the U. S. Supreme Court? 
9. Why was the Federal Judiciary established? 10. What are the 
dangers of the Eleventh Amendment? 11. What is said of treason 
12. What was the situation of citizens of the Confederate States in 
respect to treason? 

CHAPTER XIV 

1. What is the object of section 1, of Article IV? 2. Where is it 
more fully explained than in the Constitution? 3. What delayed 
somewhat the admission of Missouri? 4. WTiat is said respecting tho 
extradition of criminals? 5. Did the provision for the return of fugi- 
tives apply to any class except slaves? 6. What was the bearing of 
the Fugitive Slave Law upon the Civil War? 7. Discuss the pro- 
vision for the division of a State. 8. What is an enabling act? 

9. What is meant by "a republican form of government"? 

CHAPTER XV 

1. What was the most serious defect in the Articles of Confedera- 
tion? 2. What was in the power of a single State? 3. Under the 
Constitution is it possible for a few States to prevent an amend- 
ment? 4. What is termed the American principle? 5. Is there anj 
limitation upon the power of amendment? 6. What is the supreme 
law of the land? 7. Explain the Bill of Rights and discuss some of 
the principal provisions. 8. What were the Virginia and Kentucky 
Resolutions? 9. What is meant by the phrase "due process of law"? 

10. What is Eminent Domain? 

CHAPTER XVI 

1. Relate briefly the history of the Thirteenth Amendment. 2. In 
view of Lincoln's Emancipation Proclamation why was it necessary 
to pass that amendment? 3. What concrete question led to the Civil 
War? 4. Does birth in the United States confer citizenship? 5. How 
did the Fourteenth Amendment affect Southern Representation in 
Congress? 6. Why cannot the Southern States disfranchise all 
negroes? 7. Is there any likelihood that the Confederate debt will 
ever be paid? 8. How was the suffrage regulated at the time the 
Constitution was adopted? 9. Does the Fifteenth Amendment give 



1MH CIVIL GOVERNMENT 

the negro the right to vote? 10. What is said of the extent of con- 
stitutional history? 

CHAPTEB XVII 

1. What is the sphere of Federal activity? 2. To what matters do 
the State governments attend? 3. For convenience of administration 
how are the various States divided? 4. What is said of the school 
district? 5. What sort of political knowledge is possessed by rural 
school children? 6. Describe the historical origin of the Township. 

7. What is a "town-meeting"? 8. Name the town officials. 9. Is local 
government always and everywhere the same? 10. Does the term 
town signify anything more than area? 11. Is the Town-Meeting a 
legislative, an executive or a judicial body? 

CHAPTER XVIII 

1. What is the unit of local government in New England? 8. What 
is it in the South? 3. In what State is the Parish the unit of local 
government? 4. What is said of the origin of the township? 5. Of 
the county? 6. Describe the organization of the county in Massa- 
chusetts. 7. What were the conditions that tended to build up an 
aristocracy in Virginia? 8. Why was there no town life in that 
State? 9. What was the vestry? 10. What sort of men were pro- 
duced by the New England system and what by the Virginia system? 

CHAPTER XIX 

1. What auditing function is performed by the legislature of Vir- 
ginia? 2. In what States are the governmental units known as 
parishes, hundreds, etc.? 3. What is the institution known as the 
Initiative? Define the Referendum. 4. What are the provisions of 
the Oklahoma constitution respecting the Initiative and the Referen- 
dum? 5. What is said of town and county government in the United 
States? of city government? 6. Why is the subject of municipal gov- 
ernment new in the United States? 7. What is said of its future? 

8. Are our municipal governments homogeneous? 9. Is there any 
advantage of stripping the mayor of nearly all power? 10. Have 
State legislatures all the qualifications required to supervise city 
governments? 11. Discuss municipal government by commission. 
12. Are the cities with the greatest proportion of foreign-born voters 
the most corrupt? 13. What is said of party loyalty? 



REVIEW QUESTIONS 205 

( HAPTEB \N 

1. Why has the subject of the rights and duties of American 

citizens not been discussed before? 2. Discuss the State. 3. Name 
the essentials of a State. 4. Are our commonwealths States? 5. Dis- 
cuss the family. 6. In what way is it menaced? 7. How are legal 
rights divided? 8. State the fundamental rights and some important 
duties of citizens. 9. What is said of jury service? 10. What is illus- 
trated by municipal government, by commission, by recall? 



Appendix A. 

ARTICLES OF CONFEDERATION 

Articles of Confederation and Perpetual Union between 
the States of New Hampshire, Massachusetts Bay, Rhode 
Island and Providence Plantations, Connecticut, New York, 
New Jersey, Pennsylvania, Delaware, Maryland, Virginia, 
North Carolina, South Carolina, and Georgia. 

Article I. The style of this Confederacy shall be "The United 
States of America." 

Art. II. Each State retains its sovereignty, freedom, and inde- 
pendence, and every power, jurisdiction, and right, which is not by 
this Confederation expressly delegated to the United States in Con- 
gress assembled. 

Art. III. The said States hereby severally enter into a firm league 
of friendship with each other, for their common defense, the security 
of their liberties, and their mutual and general welfare, binding 
themselves to assist each other against all force offered to, or attacks 
made upon them, or any of them, on account of religion, sovereignty, 
trade, or any other pretence whatever. 

Art. IV. The better to secure and perpetuate mutual friendship 
and intercourse among the people of the different States in this 
Union, the free inhabitants of each of these States, paupers, vaga- 
bonds, and fugitives from justice excepted, shall be entitled to all 
the privileges and immunities of free citizens in the several States, 
and the people of each State shall have free ingress and regress to 
and from any other State, and shall enjoy therein all the privileges 
of trade and commerce, subject to the same duties, impositions, and 
restrictions as the inhabitants thereof respectively, provided that 
such restrictions shall not extend so far as to prevent the removal of 
property imported into any State, to any other State of which the 
owner is an inhabitant; provided also, that no imposition, duties, or 
restriction shall be laid by any State, on the property of the United 
States, or either of them. 

If any person guilty of or charged with treason, felony, or other 
high misdemeanor in any State, shall flee from justice, and be found 
in any of the United States, he shall, upon demand of the governor 

206 



ARTICLES OP CONFEDERATION 207 

or executive power of the State from which he fled, be delivered up 
and removed to the State having jurisdiction of his offense. 

Full faith and credit shall be given in each of these States to the 
records, acts, and judicial proceedings of the courts and magistrates 
of every other State. 

Art. V. For the more convenient management of the general in- 
terests of the United States, delegates shall be annually appointed 
in such manner as the legislature of each State shall direct, to meet 
'in Congress on the first Monday in November, in every year, with a 
power reserved to each State to recall its delegates, or any of them, 
at any time within the year, and to send others in their stead, for 
the remainder of the year. 

No State shall be represented in Congress by less than two, nor by 
more than seven members; and no person shall be capable of being a 
delegate for more than three years in any term of six years, nor shall 
any person, being a delegate, be capable of holding any office under 
the United States for which he or another for his benefit receives any 
salary, fees, or emolument of any kind. 

Each State shall maintain its own delegates in a meeting of the 
States, and while they act as members of the committee of the States. 

In determining questions in the United States, in Congress assem- 
bled, each State shall have one vote. 

Freedom of speech and debate in Congress shall not be impeached 
or questioned in any court or place out of Congress, and the mem- 
bers of Congress shall be protected in their persons from arrests and 
imprisonments, during the time of their going to or from, and at- 
tendance on, Congress, except for treason, felony, or breach of the 
peace. 

Art. VI. No State, without the consent of the United States in 
Congress assembled, shall send any embassy to, or receive any 
embassy from, or enter into any conference, agreement, alliance, 
or treaty with, any king, prince, or state; nor shall any person hold- 
ing any office of profit or trust under the United States, or any of 
them, accept of any present, emolument, office, or title of any kind 
whatever from any king, prince, or foreign state; nor shall the 
United States in Congress assembled, or any of them, grant any title 
of nobility. 

No two or more States shall enter into any treaty, confederation, 
or alliance whatever between them, without the consent of the 
United States in Congress assembled, specifying accurately the pur- 



208 CIVIL GOVERNMENT 

poses for which the same is to be entered into, and how long it shall 
continue. 

No State shall lay any imposts or duties, which may interfere with 
any stipulations in treaties entered into by the United States in Con- 
gress assembled, with any king, prince, or state, in pursuance of any 
treaties already proposed by Congress, to the courts of France and 
Spain. 

No vessels of war shall be kept up in time of peace by any State, 
except such number only as shall be deemed necessary by the United 
States in Congress assembled, for the defence of such State or its 
trade; nor shall any body of forces be kept up by any State, in time 
of peace, except such number only as in the judgment of the United 
States in Congress assembled shall be deemed requisite to garrison 
the forts necessary for the defence of such State; but every State 
shall always keep up a well regulated and disciplined militia; suffi- 
ciently armed and accoutred, and shall provide and constantly have 
ready for use, in public stores, a due number of field-pieces and tents, 
and a proper quantity of arms, ammunition, and camp equipage. 

No State shall engage in any war without the consent of the United 
States in Congress assembled, unless such State be actually invaded 
by enemies, or shall have received certain advice of a resolution 
being formed by some nation of Indians to invade such State, and the 
danger is so imminent as not to admit of a delay till the United 
States in Congress assembled can be consulted; nor shall any State 
grant commissions to any ships or vessels of war, nor letters of 
marque or reprisal, except it be after a declaration of war by the 
United States in Congress assembled, and then only against the king- 
dom or state, and the subjects thereof, against which war has been 
so declared, and under such regulations as shall be established by 
the United States in Congress assembled, unless such State be in- 
fested by pirates, in which case vessels of war may be fitted out for 
that occasion, and kept so long as the danger shall continue, or until 
the United States in Congress assembled shall determine otherwise. 

Art. VII. When land forces are raised by any State for the com- 
mon defence, all officers of or under the rank of colonel shall be ap- 
pointed by the legislature of each State respectively, by whom such 
forces shall be raised, or in such manner as such State shall direct; 
and all vacancies shall be filled up by the State which first made the 
appointment. 

Aki VIII. All charges of war and all other expenses that shall be 



ARTICLES OF CONFEDERATION 209 

incurred for the common defence or general welfare, and allowed by 
the United States in Congress assembled, shall be defrayed out of a 
common treasury, which shall be supplied by the Beveral States, in 
proportion to the value of all hind within each State, granted to or 

surveyed for any person, and such land and the buildings and im- 
provements thereon shall be estimated according to such modo as the 
United States in Congress assembled shall from time to time direct 
and appoint. 

The taxes for paying that proportion shall be laid and levied by 
the authority and direction of the legislatures of the several States 
within the time agreed upon by the United States in Congress as- 
sembled. 

Art. IX. The United States in Congress assembled shall have the 
sole and exclusive right and power of determining on peace and war, 
except in the cases mentioned in the sixth article — of sending and 
receiving ambassadors — entering into treaties and alliances, pro- 
vided that no treaty of commerce shall be made whereby the legis- 
lative power of the respective States shall be restrained from impos- 
ing such imposts and duties on foreigners as their own people are 
subjected to, or from prohibiting the exportation or importation of 
any species of goods or commodities whatsoever — of establishing 
rules for deciding, in all cases, what captures on land or water shall 
be legal, and in what manner prizes taken by land or naval forces in 
the service of the United States shall be divided or appropriated — of 
granting letters of marque and reprisal in times of peace — appointing 
courts for trial of piracies and felonies committed on the high seas, 
and establishing courts for receiving and determining finally appeals 
in all cases of captures, provided that no member of Congress shall 
be appointed a judge of any of the said courts. 

The United States in Congress assembled shall also be the last re- 
sort on appeal in all disputes and differences now subsisting or that 
hereafter may arise between two or more States concerning 
boundary, jurisdiction, or any other cause whatever; which authority 
-shall always be exercised in the manner following: — Whenever the 
legislative or executive authority or lawful agent of any State in con- 
troversy with another shall present a petition to Congress stating 
the matter in question and praying for a hearing, notice thereof shall 
be given by order of Congress to the legislative or executive au- 
thority of the other State in controversy, and a day assigned for the 
appearance of the parties by their lawful agents, who shall then be 



210 CIVIL GOVERNMENT 

directed to appoint, by joint consent, commissioners or judges to con- 
stitute a court tor hearing and determining the matter in question; 
but if they cannot agree, Congress shall name three persons out of 
each of the United States, and from the list of such persons each 
party shall alternately strike out one, the petitioners beginning, until 
the number shall be reduced to thirteen; and from that number not 
less than seven nor more than nine names, as Congress shall direct, 
shall, in the presence of Congress, be drawn out by lot, and the per- 
sons whose names shall be so drawn, or any five of them, shall be 
commissioners or judges, to hear and finally determine the contro- 
versy, so always as a major part of the judges who shali hear the 
cause shall agree in the determination; and if either party shall 
neglect to attend at the day appointed, without showing reasons, 
which Congress shall judge sufficient, or, being present, shall refuse 
to strike, the Congress shall proceed to nominate three persons out 
of each State, and the Secretary of Congress shall strike in behalf of 
such party absent or refusing; and the judgment and sentence of 
the court to be appointed, in the manner before prescribed, shall be 
final and conclusive; and if any of the parties shall refuse to submit 
to the authority of such court, or to appear or defend their claim or 
cause, the court shall nevertheless proceed to pronounce sentence or 
judgment, which shall in like manner be final and decisive, the judg- 
ment or sentence and other proceedings being in either case trans- 
mitted to Congress, and lodged among the acts of Congress for the 
security of the parties concerned: provided that every commissioner, 
before he sits in judgment, shall take an oath, to be administered by 
one of the judges of the Supreme or Superior Court of the State 
where the cause shall be tried, "well and truly to hear and determine 
the matter in question according to the best of his judgment, with- 
out favor, affection, or hope of reward," provided also that no State 
shall be deprived of territory for the benefit of the United States. 

All controversies concerning the private right of soil, claimed 
under different grants of two or more States, whose jurisdictions as 
they may respect such lands and the States which passed such grants 
are adjusted, the said grants or either of them being at the same 
time claimed to have originated antecedent to such settlement of 
jurisdiction, shall, on the petition of either party to the Congress of 
the United States, be finally determined as near as may be in the 
same manner as is before prescribed for deciding disputes respect- 
ing territorial jurisdiction between different States. 



ARTICLES OP CONFEDERATION 211 

The United States in Congress assembled shall also have the sole 
and exclusive right and power of regulating the alloy and value of 
coin struck by their own authority, or by that of the respective 
States — fixing the standard of weights and measures throughout the 
United States — regulating the trade and managing all affairs with 
the Indians, not members of any of the States, provided that the 
legislative right of any State within its own limits be not infringed 
or violated — establishing and regulating post-offices from one State 
to another, throughout all the United States, and exacting such 
postage on the papers passing through the same as may be requisite 
to defray the expenses of the said office — appointing all officers of 
the land forces in the service of the United States, excepting regi- 
mental officers — appointing all the officers of the naval forces, and 
commissioning all officers whatever in the service of the United 
States — making rules for the government and regulation of the said 
land and naval forces, and directing their operations. 

The United States in Congress assembled shall have authority to 
appoint a committee, to sit in the recess of Congress, to be denom- 
inated "A Committee of the States," and to consist of one delegate 
from each State; to appoint such other committees and civil officers 
as may be necessary for managing the general affairs of the United 
States under their direction; and to appoint one of their number to 
preside, provided that no person be allowed to serve in the office of 
president more than one year in any term of three years — to ascer- 
tain the necessary sums of money to be raised for the service of the 
United States, and to appropriate and apply the same for defraying 
the public expenses — to borrow money, or emit bills on the credit of 
the United States, transmitting every half-year to the respective 
States an account of the sums of money so borrowed or emitted — to 
build and equip a navy — to agree upon the number of land forces, 
and to make requisitions from each State for its quota, in proportion 
to the number of white inhabitants in such State; which requisition 
shall be binding, and thereupon the legislature of each State shall 
appoint the regimental officers, raise the men, and clothe, arm, and 
equip them in a soldier-like manner, at the expense of the United 
States, and the officers and men so clothed, armed, and equipped shall 
march to the place appointed, and within the time agreed on by tin 1 
United States in Congress assembled; but if the United States in 
Congress assembled shall, on consideration of circumstances, judge 
proper that any State should not raise men, or should raise a smaller 



212 CIVIL GOVERNMENT 

number than its quota, and that any other State should raise a 
greater number of men than the quota thereof, such extra number 
shall be raised, officered, clothed, armed, and equipped in the same 
manner as the quota of such State, unless the legislature of such 
State shall judge that such extra number cannot be safely spared out 
of the same, in which case they shall raise, officer, clothe, arm, and 
equip as many of such extra number as they judge can be safely 
spared: and the officers and men, so clothed, armed, and equipped 
shall march to the place appointed, and within the time agreed on, 
by the United States in Congress assembled. 

The United States in Congress assembled shall never engage in a 
war, nor grant letters of marque and reprisal in time of peace, nor 
enter into any treaties or alliances, nor coin money, nor regulate the 
value thereof, nor ascertain the sums and expenses necessary for the 
defence and welfare of the United States, or any of them, nor emit 
bills, nor borrow money on the credit of the United States, nor 
appropriate money, nor agree upon the number of vessels of war to 
be built or purchased, or the number of land or sea forces to be 
raised, nor appoint a commander-in-chief of the army or navy, unless 
nine States assent to the same; nor shall a question on any other 
point, except for adjourning from day to day, be determined, unless 
by the votes of a majority of the United States in Congress as- 
sembled. 

The Congress of the United States shall have power to adjourn to 
any time within the year, and to any place within the United States, 
so that no period of adjournment be for a longer duration than the 
space of six months, and shall publish the journal of their proceed- 
ings monthly, except such parts thereof relating to treaties, alliances, 
or military operations, as in their judgment require secrecy, and the 
yeas and nays of the delegates of each State on any question shall 
be entered on the journal, when it is desired by any delegate; and 
the delegates of a State, or any of them, at his or their request, shall 
be furnished with a transcript of the said journal, except such parts 
as are above excepted, to lay before the legislatures of the several 
States. 

Akt. X. The Committee of the States, or any nine of them, shall 
be authorized to execute, in the recess of Congress, such of the 
powers of Congress as the United States in Congress assembled, by 
the consent of nine States, shall from time to time think expedient 
to vest them with: provided that no power be delegated to the said 



ARTICLES OF CONFEDERATION '_' I 3 

Committee, for the exercise of which, by the Articles of Confedera- 
tion, the voice of nine States in the Congress of the United States 
assembled is requisite. 

Art XI. Canada, acceding to this Confederation, and joining in the 
measures of the United States, shall be admitted into and entitled to 
all the advantages of this Union; but no other colony shall be ad- 
mitted into the same, unless such admission be agreed to by nine 
States. 

Art. XII. All bills of credit emitted, moneys borrowed, and debts 
contracted by or under the authority of Congress, before the as- 
sembling of the United States in pursuance of the present Confed- 
eration, shall be deemed and considered as a charge against the 
United States, for payment and satisfaction whereof the s;iid United 
States and the public faith are hereby solemnly pledged. 

ART. XIII. Every State shall abide by the determinations of the 
United States in Congress assembled, on all questions which by this 
Confederation are submitted to them. And the Articles of this Con- 
federation shall be inviolably observed by every State, and the Union 
shall be perpetual; nor shall any alteration at any time hereafter be 
made in any of them, unless such alteration be agreed to in a Con- 
gress of the United States, and be afterwards confirmed by the legis- 
latures of every State. 

And whereas it hath pleased the Great Governor of the world to 
incline the hearts of the legislatures we respectfully represent in 
Congress to approve of and to authorize us to ratify the said Articles 
of Confederation and perpetual Union, Know ye. That we, the under- 
signed delegates, by virtue of the power and authority to us given 
for that purpose, do by these presents, in the name and in behalf of 
our respective constituents, fully and entirely ratify and confirm 
each and every of the said Articles of Confederation and perpetual 
Union, and all and singular the matters and things therein con- 
tained: and we do further solemnly plight and engage the faith of 
our respective constituents that they shall abide by the determina- 
tions of the United States in Congress assembled, on all questions 
which by the said Confederation are submitted to them. And that 
the Articles thereof shall be inviolably observed by the States we 
respectively represent, and the Union shall be perpetual. 



214 CIVIL GOVERNMENT 

Appendix B. 
THE CONSTITUTION OF THE UNITED STATES OF AMERICA 
WE THE PEOPLE* of the United States, in Order to form a more 
perfect Union, establish Justice, insure domestic Tranquility, provide 
for the common defence, promote the general Welfare, and secure the 
Blessings of Liberty to ourselves and our Posterity, do ordain and 
establish this Constitution for the United States of America. 

ARTICLE I. 
Section 1. 
1. All legislative Powers herein granted shall be vested in a Con- 
gress of the United States, which shall consist of a Senate and House 
of Representatives. 

Section 2. 

1. The House of Representatives shall be composed of Members 
chosen every second Year by the People of the several States, and the 
Electors in each State shall have the Qualifications requisite for 
Electors of the most numerous Branch of the State Legislature. 

2. No Person shall be a Representative who shall not have attained 
to the Age of twenty-five Years, and been seven Years a Citizen of the 
United States, and who shall not, when elected, be an Inhabitant of 
that State in which he shall be chosen. 

3. Representatives and direct Taxes shall be apportioned among 
the several States which may be included within this Union, accord- 
ing to their respective Numbers, which shall be determined by adding 
to the whole Number of free Persons, including those bound to Serv- 
ice for a Term of Years, and excluding Indians not taxed, three fifths 
of all other Persons. The actual Enumeration shall be made within 
three Years after the first Meeting of the Congress of the United 
States, and within every subsequent Term of ten Years, in such 
Manner as they shall by Law direct. The Number of Representatives 
shall not exceed one for every thirty Thousand, but each State shall 
have at Least one Representative; and until such enumeration shall 
be made, the State of New Hampshire shall be entitled to chuse three, 
Massachusetts eight, Rhode-Island and Providence Plantations one, 
Connecticut five, New York six, New Jersey four, Pennsylvania 



* In the original the clauses are not numbered, nor is there any title to the docu- 
ment. It begins, "Wi; thk, Pkohuv." 



CONSTITUTION OP THE UNITED STATES 



215 



eight, Delaware one, Maryland six, Virginia ten, North Carolina five, 
South Carolina five, and Georgia three. 

4. When vacancies happen in the Representation from any State, 
the Executive Authority thereof shall issue Writs of Election to fill 
such Vacancies. 

5. The House of Representatives shall chuse their Speaker and 
other Officers; and shall have the sole Power of Impeachment. 

Section 3. 

1. The Senate of the United States shall be composed of two 
Senators from each State, chosen by the Legislature thereof, for six 
Years; and each Senator shall have one Vote.* 

2. Immediately after they shall be assembled in Consequenee of 
the first Election, they shall be divided as equally as may be into 
three Classes. The Seats of the Senators of the first Class shall b<- 
vacated at the Expiration of the second Year, of the second Class 
at the Expiration of the fourth Year, and of the third Class at the 
Expiration of the sixth Year; so that one third may be chosen every 
second Year; and if Vacancies happen by Resignation or otherwise, 
during the Recess of the Legislature of any State, the Executive 
thereof may make temporary Appointment until the next Meeting 
of the Legislature, which shall then fill such Vacancies. 

3. No Person shall be a Senator who shall not have attained to the 
Age of thirty Years, and been nine Years a Citizen of the United 
States, and who shall not, when elected, be an Inhabitant of that 
S"tate for which he shall be chosen. 

4. The Vice-President of the United States shall be President of the 
Senate, but shall have no Vote, unless they be equally divided. 

5. The Senate shall chuse their other Officers, and also a President 
pro tempore in the Absence of the Vice President, or when he shall 
exercise the Office of President of the United States. 

6. The Senate shall have the sole Power to try all Impeachments. 
When sitting for that Purpose, they shall be on Oath or Affirmation. 
When the President of the United States is tried, the Chief Justice 
shall preside: And no Person shall be convicted without the Con- 
currence of two thirds of the Members present. 

7. Judgment in Cases of Impeachment shall not extend further 
than to removal from Office, and disqualification to hold and enjoy 
any Office of honor, Trust, or Profit under the United States: but the 



See Amendment XVII. 



216 CIVIL GOVERNMENT 

Party convicted shall, nevertheless, be liable and subject to Indict- 
ment, Trial, Judgment and Punishment, according to Law. 

Section 4. 

1. The Times, Places and Manner of holding Elections for Senators 
and Representatives, shall be prescribed in each State by the Legis- 
lature thereof; but the Congress may at any time by Law make or 
alter such Regulations, except as to the Places of chusing Senators. 

2. The Congress shall assemble at least once in every Year, and 
such Meeting shall be on the first Monday in December, unless they 
shall by Law appoint a different Day. 

Section 5. 

1. Each House shall be the Judge of the Elections, Returns and 
Qualifications of its own Members, and a Majority of each shall con- 
stitute a Quorum to do Business; but a smaller Number may adjourn 
from day to day, and may be authorized to compel the Attendance of 
absent Members, in such Manner, and under such Penalties as each 
House may provide. 

2. Each House may determine the Rules of its Proceedings, punish 
its Members for disorderly Behavior, and, with the Concurrence of 
two thirds, expel a Member. 

3. Each House shall keep a Journal of its Proceedings, and from 
time to time publish the same, excepting such Parts as may in their 
Judgment require Secrecy; and the Yeas and Nays of the Members of 
either House on any question shall, at the Desire of one fifth of those 
Present, be entered on the Journal. 

4. Neither House, during the Session of Congress, shall, without 
the Consent of the other, adjourn for more than three days, nor to 
any other Place than that in which the two Houses shall be sitting. 

Sectton 6. 

1. The Senators and Representatives shall receive a Compensation 
for their Services, to be ascertained by Law, and paid out of the 
Treasury of the United Stairs. They shall in all Casts, except 
Treason, Felony and Breach of the Peace, he privileged from Arrest 
during their Attendance at the Session of their respective Houses, 
and in going to and returning from the same; and tor any Speech 



CONSTITUTION OK THE UNITED STATES 217 

or Debate in either House, they shall not be questioned in any other 
Place. 
2. No Senator or Representative shall, during the Time for which 

he was elected, be appointed to any civil Office under the Authority 
of the United States, which shall have been created, or the Emolu- 
ments whereof shall have been increased during such time; and no 
Person holding any Office under the United States, shall be a member 
of either House during his Continuance in Office. 

Section 7. 

1. All Bills for raising Revenue shall originate in the House of 
Representatives; but the Senate may propose or concur with Amend- 
ments as on other Bills. 

2. Every Bill which shall have passed the House of Representa- 
tives and the Senate, shall, before it become a Law, be presented 
to the President of the United States; If he approve he shall sign it, 
but if not he shall return it, with his Objections, to that House in 
which it shall have originated, who shall enter the Objections at 
large on their Journal, and proceed to reconsider it. If after such 
Reconsideration two thirds of that House shall agree to pass the Bill, 
it shall be sent, together with the Objections, to the other House, by 
which it shall likewise be reconsidered, and if approved by two 
thirds of that House, it shall become a Law. But in all such Cases 
the Votes of both Houses shall be determined by yeas and Nays, 
and the Names of the Persons voting for and against the Bill shall 
be entered on the Journal of each House respectively. If any Bill 
shall not be returned by the President within ten Days (Sundays 
excepted) after it shall have been presented to him, the Same shall 
be a Law, in like Manner as if he had signed it, unless the Congress 
by their Adjournment prevent its Return, in which Case it shall not 
be a Law. 

3. Every Order, Resolution, or Vote to which the Concurrence of 
the Senate and House of Representatives may be necessary (except 
on a question of Adjournment), shall be presented to the President 
of the United States; and before the Same shall take Effect, shall be 
approved by him, or being disapproved by him, shall be repassed 
by two thirds of the Senate and House of Representatives, accord 
ing to the Rules and Limitations prescribed in the Case of a Bill. 



218 CIVIL GOVERNMENT 

Section 8. 

1. The Congress shall have Power To lay and collect Taxes, Duties, 
Imposts and Excises, to pay the Debts and provide for the common 
Defence and general Welfare of the United States; but all Duties, 
Imposts and Excises shall be uniform throughout the United States; 

2. To borrow Money on the credit of the United States; 

3. To regulate Commerce with foreign Nations, and among the 
several States, and with the Indian Tribes; 

4. To establish a uniform Rule of Naturalization, and uniform 
Laws on the subject of Bankruptcies throughout the United States; 

5. To coin Money, regulate the Value thereof, and of foreign Coin, 
and fix the Standard of Weights and Measures; 

6. To provide for the Punishment of counterfeiting the Securities 
and current Coin of the United States; 

7. To establish Post-Offices and post Roads; 

8. To promote the Progress of Science and useful Arts, by securing 
for limited Times to Authors and Inventors the exclusive Right to 
their respective Writings and Discoveries. 

9. To constitute Tribunals inferior to the supreme Court; 

10. To define and punish Piracies and Felonies committed on the 
high Seas, and Offences against the Law of Nations; 

11. To declare War, grant Letters of Marque and Reprisal, and 
make Rules concerning Captures on Land and Water; 

12. To raise and support Armies, but no Appropriation of Money 
to that Use shall be for a longer Term than two Years; 

13. To provide and maintain a Navy; 

14. To make Rules for the Government and Regulation of the land 
and naval Forces; 

15. To provide for calling forth the Militia to execute the Laws of 
the Union, suppress Insurrections, and repel Invasions; 

16. To provide for organizing, arming, and disciplining the Militia, 
and for governing such Part of them as may be employed in the 
Service of the United States, reserving to the States respectively, the 
Appointment of the Officers, and the Authority of training the Militia 
according to the discipline prescribed by Congress; 

17. To exercise exclusive Legislation in all Cases whatsoever, over 
such District (not exceeding ten Miles square) as may, by Cession 
of particular States, and the Acceptance of Congress, become the Seat 
of the Government of the United States, and to exercise like Au- 
thority over all Places purchased by the Consent of the Legislature 



CONSTITUTION OP THE UNITED STATES 219 

of the State in which the Same shall be, for the Erection of Forts, 
Magazines, Arsenals, dock- Yards, and other needful Buildings; — And 
18. To make all Laws which shall be necessary and proper for 
carrying into Execution the foregoing Powers, and all other Powers 
vested by this Constitution in the Government of the "United States, 
or in any Department or Officer thereof. 

Section 9. 

1. The Migration or Importation of such Persons as any of the 
States now existing shall think proper to admit, shall not be pro- 
hibited by the Congress prior to the Year one thousand eight hun- 
dred and eight, but a Tax or duty may be imposed on such Importa- 
tion, not exceeding ten dollars for each Person. 

2. The Privilege of the Writ of Habeas Corpus shall not be sus- 
pended, unless when in Cases of Rebellion or Invasion the public 
Safety may require it. 

3. No Bill of Attainder, or ex post facto Law shall bo passed. 

4. No Capitation or other direct Tax shall be laid, unless in Pro- 
portion to the Census or Enumeration herein before directed to be 
taken. 

5. No Tax or Duty shall be laid on Articles exported from any 
State. 

6. No Preference shall be given by any Regulation of Commerce or 
Revenue to the Ports of one State over those of another: nor shall 
Vessels bound to, or from, one State, be obliged to enter, clear, or 
pay Duties, in another. 

7. No money shall be drawn from tho Treasury, but in Conse- 
quence of Appropriations made by Law; and a regular Statement 
and Account of the Receipts and Expenditures of all public Money 
shall be published from time to time. 

8. No Title of Nobility shall be granted by the United States; And 
no Person holding any Office of Profit or Trust under them, shall, 
without the Consent of the Congress, accept of any present, Emolu- 
ment, Office, or Title, of any kind whatever, from any King, Prince, 
or foreign State. 

Section 10. 

1. No State shall enter into any Treaty, Alliance, or Confederation; 
grant Letters of Marque and Reprisal; coin Money; emit Bills of 
Credit; make any Thing but gold and silver Coin a Tender in Pav- 



220 CIVIL GOVERN MENT 

menl of Debts; pass any Hill of Attainder, ox post facto Law, or Law 

impairing the Obligation of Contracts, or grant any title of Nobility. 

2. No State shall, without the Consent of the Congress, lay any 
Imposts or Duties on Imports or Exports, except what may be 
absolutely necessary for executing it's inspection Laws; and the 
net Produce of all Duties and Imposts, laid by any State on Im- 
ports or Exports, shall be for the Use of the Treasury of the United 
States; and all such Laws shall be subject to the Revision and Con- 
troul of the Congress. 

3. No State shall, without the Consent of Congress, lay any Duty 
of Tonnage, keep Troops or Ships of War, in time of Peace, enter into 
any Agreement or Compact with another State, or with a foreign 
Power, or Engage in War, unless actually invaded, or in such im- 
minent Danger as will not admit of delay. 



ARTICLE II. 
Section 1. 

1. The Executive Power shall be vested in a President of the 
United States of America. He shall hold his office during the Term 
of four Years, and, together with the Vice President, chosen for the 
same Term, be elected as follows: 

2. Each State shall appoint, in such manner as the Legislature 
thereof may direct, a Number of Electors, equal to the whole Num- 
ber of Senators and Representatives to which the State may be 
entitled in the Congress: but no Senator or Representative, or Person 
holding an Office of Trust or Profit under the United States, shall be 
appointed an Elector. 

3. *The Electors shall meet in their respective States, and vote by 
Ballot for two Persons, of whom one at least shall not be an Inhab- 
itant of the same State with themselves. And they shall make a List 
of all the Persons voted for, and of the number of Votes for each; 
which List they shall sign and certify, and transmit sealed to the 
Seat of the Government of the United States, directed to the Presi- 
dent of the Senate. The President of the Senate shall, in the Pres- 
ence of the Senate and House of Representatives, open all the Certifi- 
cates, and the Votes shall then be counted. The Person having the 



Sec Amendment XII. 



CONSTITUTION OF THE UNITED STATES 221 

greatest number of Votes shall be the President, it' such Number !><• 
a Majority of the whole Number of Electors appointed; and if there 
be more than one who have such a Majority, and have an equal 
Number of Votes, then the House of Representatives shall imme- 
diately chuse, by Ballot one of them for President; and if no Person 
have a Majority, then from the five highest on the List, the said 
House shall in like manner chuse the President. But in chusing the 
President, the Votes shall be taken by States, the Representation 
from each State having one vote; A quorum for this Purpose shall 
consist of a Member or Members from two thirds of the States, and 
a Majority of all the States shall be necessary to a Choice. In every 
Case, after the Choice of the President, the Person having the great- 
est Number of Votes of the Electors shall be the Vice President. But 
if there should remain two or more who have equal Votes, the Sen- 
ate shall chuse from them by Ballot the Vice President. 

4. The Congress may determine the Time of chusing the Electors, 
and the day on which they shall give their Votes; which Day shall 
be the same throughout the United States. 

5. No Person except a natural-born Citizen, or a Citizen of the 
United States, at the time of the Adoption of this Constitution, shall 
be eligible to the Office of President; neither shall any Person be 
eligible to that Office who shall not have attained to the Age of 
thirty five Years, and been fourteen Years a Resident within the 
United States. 

6. In Case of the Removal of the President from Office, or of his 
Death, Resignation, or Inability to discharge the Powers and Duties 
of the said Office, the Same shall devolve on the Vice President, and 
the Congress may by Law provide for the Case of Removal, Death, 
Resignation, or Inability both of the President and Vice President, 
declaring what Officer shall then act as President, and such Officer 
shall act accordingly, until the disability be removed, or a President 
shall be elected. 

7. The President shall, at stated Times, receive for his Services, a 
Compensation, which shall neither be Increased nor diminished 
during the Period for which he shall have been elected, and he shall 
not reecive within that Period, any other Emolume'nt from the 
United States, or any of them. 

8. Before he enter on the Exe6ution of his Office he shall take the 
following Oath or Affirmation: — "I do solemnly swear (or affirm) 
that I will faithfully execute the Office of President of the United 



222 CIVIL GOVERNMENT 

States, and will, to the best of my Ability, preserve, protect, and de- 
fend the Constitution of the United States." 



Section 2. 

1. The President shall be Commander in Chief of the Army and 
Navy of the United States, and of the Militia of the several States, 
when called into the actual Service of the United States; he may 
require the Opinion, in writing, of the principal Officer in each of the 
Executive Departments, upon any Subject relating to the Duties of 
their respective offices, and he shall have Power to grant Reprieves 
and Pardons for Offences against the United States, except in Cases 
of Impeachment. 

2. He shall have Power, by and with the Advice and Consent of 
the Senate, to make Treaties, provided two thirds of the Senators 
present concur; and he shall nominate, and by and with the Advice 
and Consent of the Senate, shall appoint Ambassadors, other Public 
Ministers, and Consuls, Judges of the supreme Court, and all other 
Officers of the United States, whose Appointments are not herein 
otherwise provided for, and which shall be established by Law: but 
the Congress may by Law vest the Appointment of such inferior 
Officers, as they think proper, in the President alone, in the Courts 
of Law, or in the Heads of Departments. 

3. The President shall have Power to fill up all Vacancies that may 
happen during the Recess of the Senate, by granting Commissions 
which shall expire at the End of the next Session. 

Section 3. 

1. He shall from time to time give to the Congress Information 
of the State of the Union, and recommend to their Consideration such 
Measures as he shall judge necessary and expedient; he may, on 
extraordinary Occasions, convene both Houses, or either of them, 
and in Case 'of Disagreement between them, with Respect to the time 
of Adjournment, he may adjourn them to such Time as he shall 
think proper; he shall receive Ambassadors and other public Min- 
isters; he shall take Care that the Laws be faithfully executed, and 
shall commission all the Officers of the United States. 



CONSTITUTION OF THE DNITBD STATES 223 

Section 4. 

1. The President, Vice President, and all civil Officers of the United 
States, shall be removed from Office on Impeachment for, and Con- 
viction of, Treason, Bribery, or other high Crimes and Misdemeanors. 



ARTICLE III. 

Section 1. 

1. The judicial Power of the United States shall be vested in one 
supreme Court, and in such inferior Courts as the Congress may, 
from time to time, ordain and establish. The Judges, both of the 
supreme and inferior Courts, shall hold their Offices during good 
Behavior, and shall, at stated Times, receive for their Services a 
Compensation, which shall not be diminished during their Contin- 
uance in Office. 

Section 2. 

1. The judicial Power shall extented to all Cases, in Law and 
Equity, arising under this Constitution, the Laws of the United 
States, and Treaties made, or which shall be made, under their 
Authority; — to all Cases affecting Ambassadors, other public Minis- 
ters and Consuls; — to all Cases of admiralty and maritime Jurisdic- 
tion; to Controversies to which the United States shall be a Party; — 
to Controversies between two or more States; — between a State and 
Citizens of another State; — between Citizens of different States, — 
between Citizens of the same State claiming Lands under Grants 
of different States, and between a State or the Citizens thereof, and 
foreign States, Citizens, or Subjects. 

2. In all Cases affecting Ambassadors, other public Ministers and 
Consuls, and those in which a State shall be a Party, the supreme 
Court shall have original Jurisdiction. In all the other Cases before 
mentioned, the supreme Court shall have appellate Jurisdiction, both 
as to Law and Fact, with such Exceptions, and under such regula- 
tions as the Congress shall make. 

3. The Trial of all Crimes, except in Cases of Impeachment, shall 
be by Jury; and such Trial shall be held in the State where the said 
Crimes shall have been committed; but when not committed within 
any State, the Trial shall be at such Place or Places as the Congress 
may by Law have directed. 



224 CIVIL GOVERNMENT 

Section 3. 

1. Treason against the United States, shall consist only in levying 
War against them, or in adhering to their Enemies, giving them Aid 
and Comfort. No Person shall be convicted of Treason unless on 
the Testimony of two Witnesses to the same overt Act, or on Con- 
fession in open Court. 

2. The Congress shall have Power to declare the Punishment of 
Treason, but no Attainder of Treason shall work Corruption of 
Blood, or Forfeiture except during the Life of the Person attainted. 



ARTICLE IV. 

Section 1. 

1. Full Faith and Credit shall be given in each State to the public 
Acts, Records, and judicial Proceedings of every other State. And 
the Congress may by general Laws prsecribe the manner in which 
such Acts, Records, and Proceedings shall be proved, and the Effect 
thereof. 

Section 2. 

1. The Citizens of each State shall be entitled to all Privileges and 
Immunities of Citizens in the several States. 

2. A Person charged in any State with Treason, Felony, or other 
Crime, who shall flee from Justice, and be found in another State, 
shall on Demand of the executive Authority of the State from which 
he fled, be delivered up to be removed to the State having jurisdiction 
of the Crime. 

3. No Person held to Service or Labour in one State, under the 
Laws thereof, escaping into another, shall, in Consequence of any 
Law or Regulation therein, be discharged from such Service or 
Labour, but shall be delivered up on Claim of the Party to whom 
such Service or Labour may be due. 

Section 3. 

1. New States may be admitted by the Congress into this Union; 
but no new State shall be formed or erected within the Jurisdiction 
of any other State; nor any State be formed by the Junction of two 
or more States, or Parts of States, without the Consent of the Legis- 
latures of the States concerned as well as of the Congress. 



CONSTITUTION OF THE UNITED STATES --•> 

2. The Congress shall have Power to dispose of and make all 
needful Rules and Regulations respecting the Territory or other 
Property belonging to the United States; and nothing in this Con- 
stitution shall be so construed as to Prejudice any Claims of the 
United States, or of any particular State. 

Section 4. 

1. The United States shall guarantee to every State in this Union 
a Republican Form of Government, and shall protect each of them 
against Invasion; and on Application of the Legislature, or of the 
Executive (when the Legislature cannot be convened) against 
domestic Violence. 



ARTICLE V. 

1. The Congress, whenever two thirds of both Houses shall deem 

it necessary, shall propose Amendments to this Constitution, or, on 
the Application of the Legislature of two thirds of the several 
States, shall call a Convention for proposing Amendments, which, 
in either Case, shall be valid to all Intents and Purposes, as Part 
of this Constitution, when ratified by the Legislatures of three 
fourths of the several States, or by Conventions in three fourths 
thereof, as the one or the other Mode of Ratification may be pro- 
posed by the Congress; Provided that no Amendment which may be 
made prior to the Year One thousand eight hundred and eight shall 
in any Manner affect the first and fourth Clauses in the Ninth Sec- 
tion of the first Article; and that no State, without its Consent, shall 
be deprived of it's equal Suffrage in the Senate. 



ARTICLE VI. 

1. All Debts contracted and Engagements entered into, before the 
Adoption of this Constitution, shall be as valid against the United 
States under this Constitution, as under the Confederation. 

2. This Constitution, and the Laws of the United States which 
shall he made in pursuance thereof; and all Treaties made, or which 
shall be made, under the Authority of the United States, shall be 
the supreme Law of the Land; and the .Judges in every State shall be 



226 CIVIL GOVERNMENT 

bound thereby, any Thing in the Constitution or Laws of any State 
to the Contrary notwithstanding. 

3. The Senators and Representatives before mentioned, and the 
Members of the several State Legislatures, and all executive and 
judicial Officers, both of the United States and of the several States, 
shall be bound by Oath or Affirmation, to support this Constitution; 
but no religious Test shall ever be required as a Qualification to any 
office or public Trust under the United States. 



ARTICLE VII. 

1. The Ratification of the Conventions of nine States shall be 
sufficient for the Establishment of this Constitution between the 
States so ratifying the same. 

Done in Convention by the Unanimous Consent of the 
States present the Seventeenth Day of September in 
the Year of our Lord one thousand seven hundred and 
Eighty-seven and of the Independence of the United 
States of America the Twelfth. In Witness whereof 
We have hereunto subscribed our Names, 
G° : WASHINGTON— Prcsldt. and deputy from Virginia. 
Attest William Jackson Secretary. 



New Hampshire: 
John Langdon 
Nicholas Gilman 



Massachusetts: 

Nathaniel Gorham 
Rufus King 

Connecticut: 

Wm: Saml. Johnson 
Roger Sherman 

New York: 

Alexander Hamilton 



CONSTITUTION OF THE UNITED STATES 227 

"New Jersey: 

Wil: Livingston 
David Brearley 
Wm. Paterson 
Jona: Dayton 



Pennsylvania: 
B Franklin 
Thomas Mifflin 
Robt. Morris 
Geo. Clymer 
Thos. Fitz Simons 
Jared Ingersoll 
James Wilson 
Gouv Morris 



Delaware: 

Geo: Read 

Gunning Bedford jun 
John Dickinson 
Richard Bassett 
Jaco: Broom 



Maryland: 

James McHenry 

Dan of St. Thos. Jenifer 

Danl Carroll 



Virginia: 

John Blair — 
James Madison Jr 



Nort?i Carolina: 
Wm: Blount 
Richd. Dobbs Spaight 
Hu Williamson 



228 CIVIL GOVERNMENT 

South Carolina: 
J. Rutledge 

Charles Cotesworth Pinckney 
Charles Pinckney 
Pierce Butler 

Georgia: 

William Few 
Abr Baldwin 

[Articles in Addition to and Amendment of the Constitution of the 
United States of America, Proposed by Congress and Ratified by the 
Legislatures of the several States, Pursuant to the Fifth Article of 
the Constitution.] 

(ARTICLE I.) 

Congress shall make no law respecting an establishment of re- 
ligion, or prohibiting the free exercise thereof; or abridging the 
freedom of speech, or of the press; or the right of the people peace- 
ably to assemble, and to petition the Government for a redress of 
grievances. 

(ARTICLE II.) 

A well-regulated Militia, being necessary to the security of a free 
State, the right of the people to keep and bear Arms, shall not be 
infringed. 

(ARTICLE III.) 

No soldier shall, in time of peace, be quartered in any house, with- 
out the consent of the Owner, nor, in time of war, but in a manner 
to be prescribed by law. 

(ARTICLE IV.) 

The right of the people to be secure in their persons, houses, 
papers, and effects, against unreasonable searches and seizures, shall 
not be violated, and no Warrants shall issue, but upon probable 
cause, supported by Oath or affirmation, and particularly describing 
the place to be searched, and the persons or things to be seized. 






CONSTITUTION OF THE UNITED STATES 220 

(ARTICLE V.) 

No person shall be held to answer for a capital, or otherwise in- 
famous crime, unless on a presentment or indictment of a Grand 
Jury, except in cases arising in the land or naval forces, or in the 
Militia, when in actual service in time of War or public danger; 
nor shall any person be subject for the same offence to be twice put 
in jeopardy of life or limb; nor shall be compelled in any Criminal 
Case to be a witness against himself, nor be deprived of life, liberty, 
or property, without due process of law; nor shall private property 
be taken for public use, without just compensation. 

(ARTICLE VI.) 

In all criminal prosecutions, the accused shall enjoy the right to 
a speedy and public trial, by an impartial jury of the State and dis- 
trict wherein the crime shall have been committed, which district 
shall have been previously ascertained by law, and to be informed 
of the nature and cause of the accusation; to be confronted with 
the witnesses against him; to have compulsory process for obtaining 
Witnesses in his favor, and to have the assistance of Counsel for his 
defence. 

(ARTICLE VII.) 

In suits at common law, where the value in controversy shall 
exceed twenty dollars, the right of trial by jury shall be preserved, 
and no fact tried by a jury shall be otherwise re-examined in any 
Court of the United States, than according to the rules of the com- 
mon law. 

(ARTICLE VIII.) 

Excessive bail shall not be required, nor excessive fines imposed, 
nor cruel and unusual punishments inflicted. 

(ARTICLE IX.) 

The enumeration in the Constitution, of certain rights, shall not be 
construed to deny or disparage others retained by the people. 

(ARTICLE X.) 

The powers not delegated to the United States by the Constitution, 
nor prohibited by it to the States, are reserved to the States re- 
spectively, or to the people. 



L'llO CIVIL GOVERNMENT 

(ARTICLE XL) 

The Judicial power of the United States shall not be construed to 
extend to any suit in law or equity, commenced or prosecuted against 
one of the United States by Citizens of another State, or by Citizens 
or Subjects of any Foreign State. 

(ARTICLE XII.) 

Section 1. 

The Electors shall meet in their respective states, and vote by 
ballot for President and Vice President, one of whom, at least, shall 
not be an inhabitant of the same state with themselves; they shall 
name in their ballots the person voted for as President, and in dis- 
tinct ballots the person voted for as Vice-President; and they shall 
make distinct lists of all persons voted for as President, and of all 
persons voted for as Vice-President, and of the number of votes 
for each, which lists they shall sign and certify, and transmit sealed 
to the seat of government of the United States, directed to the Presi- 
dent of the Senate; — the President of the Senate shall, in the pres- 
ence of the Senate and House of Representatives, open all the cer- 
tificates and the votes shall then be counted; — The person having the 
greatest number of votes for President, shall be the President, if 
such number be a majority of the whole number of Electors ap- 
pointed; and if no person have such majority, then from the persons 
having the highest numbers not exceeding three on the list of those 
voted for as President, the House of Representatives shall choose 
immediately, by ballot, the President. But in choosing the Presi- 
dent, the votes shall be taken by states, the representation from each 
state having one vote; a quorum for this purpose shall consist of a 
member or members from two-thirds of the states, and a majority 
of all the states shall be necessary to a choice. And if the House of 
Representatives shall not choose a President whenever the right of 
choice shall devolve upon them, before the fourth day of March next 
following, then the Vice-President shall act as President, as in the 
case of the death or other constitutional disability of the President. 
The person having the greatest number of votes as Vice-President 
shall be the Vice-President, if such number be a majority of the 
whole number of Electors appointed, and if no person have a ma- 
jority, then from the two highest numbers on the list, the Senate 
shall choose the Vice-President; a quorum for the purpose shall 



CONSTITUTION' OF Till! TMTKI> STATICS 2ol 

consist of two-thirds of the whole numher of Senators, a majority 
of the whole number shall be necessary to a choice. But no person 
constitutionally ineligible to the office of President shall be eligible 
to that of Vice-President of the United States. 

(ARTICLE XIII.) 

Section 1. 

Neither slavery nor involuntary servitude, except as a punishment 
for crime whereof the party shall have been duly convicted, shall 
exist within the United States, or any place subject to their juris- 
diction. 

Section 2. 

Congress shall have power to enforce this article by appropriate 
legislation. 

(ARTICLE XIV.) 

Section 1. 

All persons born or naturalized in the United States, and subject 
to the jurisdiction thereof, are citizens of the United States and 
of the State wherein they reside. No State shall make or enforce 
any law which shall abridge the privileges or immunities of citizens 
of the United States; nor shall any State deprive any person of life, 
liberty, or property, without due process of law; nor deny to any 
person within its jurisdiction the equal protection of the laws. 

Section 2. 

Representatives shall be apportioned among the several States ac- 
cording to their respective numbers, counting the whole number of 
persons in each State, excluding Indians not taxed. But when the 
right to vote at any election for the choice of electors for President 
and Vice President of the United States, Representatives in Con- 
gress, the Executive and Judicial officers of a State, or the members 
of the Legislature thereof, is denied to any of the male inhabitants 
of such State, being twenty-one years of age, and citizens of the 
United States, or in any way abridged, except for participation in 
rebellion, or other crime, the basis of representation therein shall 
be reduced in the proportion which the number of such male citizens 
shall bear to the whole number of male citizens twenty-one years 
of age in such Stat^. 



232 CIVIL GOVERNMENT 

Section 3. 

No person shall be a Senator or Representative in Congress, or 
elector of President and Vice President, or hold any office, civil or 
military, under the United States, or under any State, who, having 
previously taken an oath, as a member of Congress, or as an officer 
of the United States, or as a member of any State legislature, or as 
an executive or judicial officer of any State, to support the Constitu- 
tion of the United States, shall have engaged in insurrection or re- 
bellion against the same, or given aid or comfort to the enemies 
thereof. But Congress may by a vote of two-thirds of each House, 
remove such disability. 

Section 4. 

The validity of the public debt of the United States, authorized by 
law, including debts incurred for payment of pensions and bounties 
for services in suppressing insurrection or rebellion, shall not be 
questioned. But neither the United States nor any State shall as- 
sume or pay any debt or obligation incurred in aid of insurrection 
or rebellion against the United States, or any claim for the loss or 
emancipation of any slave; but all such debts, obligations and 
claims shall be held illegal and void. 

Section 5. 

The Congress shall have power to enforce, by appropriate legis- 
lation, the provisions of this article. 

(ARTICLE XV.) 

Section 1. 

The right of citizens of the United States to vote shall not be 
denied or abridged by the United States or by any State on account 
of race, color, or previous condition of servitude. 

Section 2. 

The Congress shall have power to enforce this article by appro- 
priate legislation. 

(ARTICLE XVI.) 

The Congress shall have power to lay and collect taxes on incomes, 
from whatever source derived, without apportionment among the 
several States, and without regard to any census or enumeration. 



CONSTITUTION OF THE UNITED STATES 233 

(ARTICLE XVII.) 

The Senate of the United States shall be composed of two Senators 
from each State, elected by the people thereof, for six years; and 
each Senator shall have one vote. The electors in each State shall 
have the qualifications requisite for electors of the most numerous 
branch of the State legislatures. 

When vacancies happen in the representation of any State in the 
Senate, the executive authority of such State shall issue writs of elec- 
tion to fill such vacancies: Provided. That the legislature of any 
State may empower the executive authority thereof to make tempo- 
rary appointments until the people fill the vacancies by election as 
the legislature may direct. 

This amendment shall not be so construed as to affect the election 
or term of any Senator chosen before it becomes valid as part of the 
Constitution. 



INDEX 



Adams, John Quincy, 101. 
Albany Plan, the, 19-21. 
Aliens, 190. 
Allegiance, 194. 
Alliances, 90. 

Amendment, the twelfth, 100. 
Amendment, the second, 141. 
Amendment, the third, 142. 
Amendment, the fourth, 142. 
Amendment, the fifth, 142. 
Amendment, the eighth, 143. 
Amendment, the ninth, 144. 
Amendment, the tenth, 144. 
Amendments, the Civil War, 145. 
American principle, the, 136. 
Annapolis, convention at, 28. 
Aristocracy, 5. 
Aristotle, definitions of, 5. 
Arthur, Chester A., 106. 
Articles of Confederation, 11, 13, 

22, 23; text of the, 206. 
Assessor, the, 159. 
Attainder, bill of, 87. 
Attorney, the district, 170. 
Avenant, d', plan of, 17. 



Bail, excessive, 143. 
Bankruptcies, 70. 
Belknap, William W., 52. 
Bill of Rights, 139. 
Bills of credit, 91. 
Blood, corruption of, 126. 
Blount, William, 50. 
Borough, the, 161. 
Borrowing power, 62. 
Burgesses, House of, 174. 
Burr, Aaron, 99, 125. 
Butler, Pierce, 30. 



Calhoun, John C, 101. 
Census, the, 45. 
Charter, 94. 
Chase, Justice Samuel, 51. 



Children, 8. 

Citizen, 5; rights and duties of, 

186. 
Citizens of seceding States, 126. 
Civil officers, 50, 51. 
Civil rights, 191. 
Clerk, the county, 170. 
Coinage, 71. 
Collector, the, 159. 
Comity, inter-State, 128, 129. 
Commerce, 63-66. 
Commission, government by, 182. 
Commissioners, the county, 167. 
Compromise of 1850, 131. 
Connecticut, 26. 
Confederate States, the, 41. 
Congress, the, 43, 44, 53, 54, 60, 

62, 79, 83. 
Constable, the, 157. 
Constitution, idea of a, 3. 
Constitution, the, 36, 38; text of, 

214. 
Constitution, a rigid, 137. 
Constitution, the unwritten, 106. 
Constitution, the written, 106. 
Contracts, 92, 93. 
Convention, the constitutional, 

29-32, 34, 35. 
Copyrights, 74. 
Coroner, the, 171. 
County, the, 155, 167. 
Courts, U. S. Circuit, 121. 
Courts, U. S. District, 120. 
Courts, U. S. Supreme, 121-123. 
Coxe, Daniel, 18. 

D. 

Dartmouth College, trustees of, 

93. 
Debt, public, 150. 
Debt, Southern, 150. 
Deeds, Register of, 169. 
Democracy, 5. 

Democratic government, 162. 
Departments, growth of, 114-117. 
Dickinson, President, 26. 



235 



236 



INDEX 



Disfranchisement, 149. 
District of Columbia, the, 81. 
Divorce, danger of, 190. 
Due Process of Law, 142. 
Duties, 192. 

E. 

Education, 197, 198. 
Election day, 52, 53. 
Electoral Commission, the, 101. 
Electoral votes, 105, 107, 108. 
Electors, Presidential, 98, 104. 
Emancipation, 146, 147. 
Eminent Domain, 143. 
Enabling Act, an, 133. 
Ex Post Facto Law, 88. 
Exports, 89. 
Executive, a single proposed, 34; 

tenure of, 35, 97, 107. 
Expulsion, 56. 
Extradition, 129. 

P. 

Family, the, 189. 
Federalist, The, 38. 
Felony, 78. 

Fence-viewer, the, 160. 
Feudalism, 194. 
Fines, excessive, 143. 
Florida, vote of, 101. 

G. 

Garfield, President James A., 106. 
Georgia, 43. 

Government, Frame of, 43. 
Government, 4, 10. 
Government, civil, denned, 2. 
Government, military, 2. 
Government, the Federal, 11. 
Government, municipal, 178. 

H. 

Habeas Corpus, suspension of, 84. 
Hamilton, Alexander, 30, 34, 37. 
Hayes, R. B„ 101. 
Hendricks, Thomas A., 101. 
Henry, Patrick, 41. 
High Seas, the, 78. 
Highways, surveyor of, 160. 



Humphreys, Judge, 51. 
Hundred, the, 176. 

I. 

Ideals, ethical, 193. 
Impeachment, 50, 52. 
Indictments, 142. 
Inhabitant, 5. 
Initiative, the, 177. 



Jackson, Andrew, 101. 
Jefferson, Thomas, 99. 
Johnson, Andrew, 51, 52. 
Johnson, Richard Mentor, 101. 
Jury, the, 195. 
Justice, not established before 

Constitution, 42. 
Justice, the Department of, 119- 

121. 

K. 

Keith, Sir William, 23. 
Kennedy, Archibald, 18. 
King, Rufus, 30. 



Lansing, John, 31, 32. 
Law of Nations, the, 78. 
Law of the Land, 137. 
Lee, Richard Henry, 36. 
Legal Tender, 72. 
Legislatures, the, 178. 
Letters of Marque, 79. 
Lieutenant, the County, 175. 
Lincoln, General, 28. 
Lincoln, President, 85. 
Livingston, plan of, 17. 
Louisiana, vote of, 101. 
Lumber, surveyor of, 160. 

M. 
Madison, James, 30, 31, 36. 
Manor, the, 166. 
Marshall, Chief Justice, 82, 120, 

125. 
Massachusetts, 167. 
Mayor, the, 180. 
McCulloch v. Maryland, 82. 



INDEX 



237 



McHenry, Dr. James, 30. 
Members of Congress, 56, 57, 58. 
Merryman, John, 85. 
Metric System, the, 73. 
Mexico, cession by, 146. 
Militia, calling out the, 79, 80, 

141. 
Missouri, 129. 
Monarchy, 5. 
Morris, Robert, 30. 
Municipal government, 178, 184. 

N. 

Nations, 3. 

Naturalization, 7, 67-70. 
Necessary and proper legislation, 

82. 
Negroes, 148, 151. 
New England, United Colonies 

of, 15. 
New Hampshire Grants, the, 25. 
New Hampshire, 24. 
New Jersey, 25, 174. 
New Jersey Plan, the, 31, 33. 
New York, 24, 25, 37. 
Nobility, titles of, 90. 
Nominating convention, national, 

105. 
North, the South met by, 16. 



Ordinance of 1787, 145. 
Oregon, vote of, 101. 

P. 

Pains and Penalties, bill of, 87. 

Parish, the, 176. 

Party allegiance, 184. 

Patents, 73, 74. 

Peace, Justice of the, 157, 168. 

Peck, Judge, 51. 

Penn, William, union proposed 

by, 17. 
Pennsylvania, 26, 43. 
Pickering, Judge John, 51. 
Pinckney, Charles C, 30. 
Piracy, 77. 
Platform, the, 105. 
Plurality, 100. 



Political power, source of, 10. 

Political Rights, 191. 

Poor, overseer of the, 157; super- 
intendent of the, 171. 

Ports, 89. 

Post Office Department, the, 73. 

Poughkeepsie, convention at, 37. 

Poundkeeper, the, 157. 

Power, concurrent, 73. 

Powers of Congress, 60. 

Preamble, The, 39, 40, 41. 

President, the, 97, 98, 99, 101, 
102, 103, 104, 107; compensa- 
tion of, 109; appointing power 
of 110; powers and duties of, 
111. 



Quorum, 55. 



Randolph, Edmund, 31. 
Recall, the, 197. 
Referendum, the, 177. 
Representation, loss of, 149. 
Repreesntatives in Congress. 44. 

45. 
Representatives, House of, 4t». 
Republic, 163. 
Republican form of government. 

134, 135. 
Resident, 5. 
Revenue bills, 60. 
Rhode Island, 27. 
Rights, bill of (see Bill of 

Rights). 
Rights, 191. 
Road Districts, 155. 

S. 

School District, the, 155. 
Sedition Law, the, 140. 
Selectmen, the, 158. 
Senate, the, 48. 
Senators in Congress, 47. 
Senators, classes of, 48. 
Separation of powers, 180. 
Sessions of Congress, 54. 
Shays, Rebellion of, 27. 



2<°>8 



INDEX 



Sheriff, the, 168. 
Shires, the, 166. 
Slaves, status of, 44; rendition 

of, 130; slavery abolished, 145. 
Slave Trade, the, 83. 
South, the North first met by, 16. 
South, unit of government in, 
Stair, Earl of, 18. 

165. 
Stamp Act Congress, the, 22. 
Stanton, Edwin M., 52. 
State, the, 4, 5, 187. 
States, limitations on the, 72, 90, 

91; admission of new, 132, 148, 

152. 
States, government of, 153-185. 
Succession Act, the Presidential, 

106. 
Suffrage, the, 150; a restricted, 

183. 
Supervisors, board of, 169. 
Surrogate, the, 171, 172. 



Taney, Chief Justice, 85. 

Tax, direct, 89. 

Taxation, 196. 

Taxes, 61. 

Tender, Legal (see "Legal 

Tender"). 
Tilden, Samuel J., 101. 
Town, the, 162, 167. 
Town clerk, the, 159. 
Town Meeting, the, 158; in New 

Jersey, 162, 165. 
Townships, 155. 
Trade and Plantations, Lords of, 

23. 
Treason, 124. 
Treasurer, the town, 159; thp 

county, 168. 



U. 
Union, the earliest, 14. 
Union, plans of, 14. 



Union, weaknesses of, 23. 
Union, the Federal, 46. 



Vacancies in House, 46. 

Vacancy in Presidency, 106. 

Value, regulation of, 71. 

Vermont, District of, 43. 

Vestry, the, 173. 

Veto, the, 111, 112. 

Veto, the pocket, 113. 

Vice-President, the, 105, 106. 

Village, the, 160. 

Virginia, 28; Constitution adopt- 
ed by, 37; division of, 133, 173, 
174. 

Virginia Plan, 31. 

Virginia and Kentucky Resolu- 
tions, the, 140. 

Voter, 5. 

Voters, number of, 9, 44. 

Vote, the foreign, 183. 

Voting, right of, 151; inde- 
pendence in, 185. 

W. 
War, power to declare, 79. 
War, the Civil, 149. 
Washington, General George, 30. 
W'eights and Measures, sealer of, 

160. 
Wentworth, Governor Benning, 

24. 
Wheeler, William A., 101. 
Whiskey Insurrection, the, 80. 
Wilmot Proviso, the, 145. 
Wilson, James, 30. 
Wisconsin, vote of, 99. 
Women, 8. 
Woodward, Case of, 93. 

Y. 
Yates, Hon. Robert, 31, 32. 



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